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THE DRAFTING 
OF THE COVENANT 


By 
DAVID HUNTER MILLER 


WITH AN INTRODUCTION BY 


NICHOLAS MURRAY BUTLER 


VOLUME ONE 


119730 


G. P. PUTNAM’S SONS 
NEW YORK — LONDON 
€he Duirkerborker Press 
1928 


THE DRAFTING OF THE COVENANT 
VOLUME ONE 
fe 
Copyright, 1928 
by 
David Hunter Miller 


Made in the United States of America 


SU E728 

Pena Rrevniel wi 
“ yet Tl) 
Gc.°/5. / DREFATORY NOTE Vv. | 


Tue history of the origin of the Covenant of the League of 
Nations is known only in part, though much has been written 
about it and numerous relevant documents have been made public. 

I hope to add to what has already been published by telling 
what I know of the story of the drafting of the Covenant; as part 
of this aim I attempt to assemble in one collection all of the im- 
portant official documents which preceded and led up to the text 
of the Covenant as finally adopted in the Treaty of Versailles; 
and I throw such light upon these papers as my own notes and 
records afford. 

Better than any one else, perhaps, I realize that this account is 
not complete. Of necessity, it is written from an American view- 
point; in particular there is very much that the British had to do 
with the making of the League of Nations of which I have no 
detailed knowledge and which accordingly is not here set down. 

Proposals at sundry times in one form or another for the 
creation of a League of Nations are very numerous. With most 
of them this work has nothing to do. The organized efforts of 
various societies in several countries and the utterances and 
influence of many individuals played a great part in the creation, 
during the World War and particularly in its later period, of an 
almost universal sentiment in favor of some Association of Na- 
tions for international peace. Doubtless without those efforts and 
without that public sentiment there would have been no Covenant; 
but I attempt no account of them. 

Subject to the limitations mentioned, I try to tell how and by 
whom and when the text of the Covenant of the League of Na- 
tions was written; adding some views of my own on its phases 
since that writing. 


D. H. M. 
1927. 


1197350 


111 


ee 


CONTENTS 
OF 


VoLUME ONE 


INTRODUCTION, BY NIcHOLAS Murray BUTLER 


CHAPTER 


VIII. 


XIi. 
XIII. 
XIV. 

XV. 
XVI. 

XVII. 
XVIII. 
XIX. 


Earty Drarts 

AMERICAN SUGGESTIONS 

THe Smuts PLAN 

WItson’s SECOND AND THIRD DRAFTS 

THE PROPOSALS OF CECIL 

Tue Hurst-MILter Draft. 

Witson’s FourtH Drart 

THE CovENANT IN THE TREATY . 

MANDATES. d 4 

Tue CovENANT OF FEBRUARY I4 
CoMPARISON OF ARTICLE NUMBERS 

First MEETING OF THE COMMISSION . 

SECOND MEETING OF THE COMMISSION 

TuHirD MEETING OF THE COMMISSION 

FourtTH MEETING OF THE COMMISSION 

FirtH MEETING OF THE COMMISSION . 

S1xtH MEETING OF THE COMMISSION . 

SEVENTH MEETING OF THE COMMISSION 

EicGHTH MEETING OF THE COMMISSION 


THe Fesruary DRAFTING COMMITTEE 


Vv 


PAGE 


vi 


CHAPTER 


XX. 
XXI. 
XXII. 
XXIII. 
XXIV. 
XXV. 
XXVI. 
XXVIII. 
XXVIII. 
XXIX. 
XXX. 
XXXI. 
XXXII. 
XXXII. 


XXXIV. 
OY. 
XXXVI. 
XXXVIL. 


CONTENTS 


NiIntH MEETING OF THE COMMISSION 

TENTH MEETING OF THE COMMISSION 

A REPRESENTATIVE ASSEMBLY 

CRITICISMS AND CHANGES . 

MEETINGS WITH THE NEUTRAL POWERS 

ELEVENTH MEETING OF THE COMMISSION . 

TWELFTH MEETING OF THE COMMISSION 

THIRTEENTH MEETING OF THE COMMISSION 

FuRTHER CRITICISMS 

THE FINAL DRAFTING COMMITTEE 

A ProposED NAVAL AGREEMENT . 

THE Swiss AMENDMENT 

FouRTEENTH MEETING OF THE COMMISSION 

FinaL MEETING OF THE COMMISSION . 
NUMBERING OF THE COVENANT ARTICLES 

LATER CHANGES 

THE FrENcH TEXT 

THE GERMAN PROPOSALS 


LooxkInc BACKWARD 


PAGE 
225 


243 
272 
276 
303 
310 © 
322 
336 
354 
390 
419 
428 
439 
453 
469 
473 
505 
537 
549 


INTRODUCTION 


No student of history and politics will underestimate the 
value of this book. Americans in particular know what it means 
to have at the service of future generations the manuscript record 
of the history of the making of a great document by a close par- 
ticipant in every phase of the undertaking. 

Had not James Madison kept an elaborate series of notes 
of the day-by-day happenings of the Constitutional Convention 
of 1787 and had he not after reflection and revision left them 
at his death in such form that they could pass readily into the 
hands of the Government of the United States, we should today be 
without that intimate knowledge of so much of the history of 
that famous Convention which is the main foundation of our 
understanding of the Constitution of the United States and of 
how it came to be what it is. 

Since the making of the Constitution of the United States 
there has been no undertaking of equal or greater importance until 
the drafting of the Covenant of the League of Nations in 1919, 
to be incorporated in the text of the Treaty of Versailles. By this 
Covenant there was brought into existence a formal association 
of nations to fulfill the dreams of prophets and seers for hun- 
dreds of years. The hopes of a large part of mankind instantly 
went out to this new undertaking as the surest, if not a final and 
certain, protection against the havoc and cruel disaster of inter- 
national war and against the constant and selfish exploitation of 
the weak among nations by the strong. How each one of these 
paragraphs came to be; what was its genesis; what were its alter- 
native forms during the period of consideration and discussion; 
what were the motives and ideals behind it; how were the various 
national forces and their representatives aligned; what inter- 
pretation did each put upon these notable paragraphs—these are 
questions already being asked throughout the world and which 
will be asked for centuries to come. 

Mr. David Hunter Miller was in the fortunate position of 
cooperating from beginning to end in the making of the Cove- 
nant of the League of Nations. Through his careful industry 


Vii 


viii INTRODUCTION 


there was made and preserved this record, which must be quite 
unique, of the inner history of the projects, conferences and de- 
bates which preceded and accompanied the framing of the Cove- 
nant. As a source book for the historian, the public lawyer and 
the statesman, this record is well nigh invaluable. It speaks for 
itself and is commended to the judgment and careful study of 
those in every land who are solicitous to follow this notable under- 
taking in its genesis and early history and who wish by all possible 
means to strengthen its hand in the development of international 
law, in the suppression of aggressive war and in those policies of 
international cooperation to protect and promote the health, the 
good order and the satisfactions of nations, great and small, 
throughout the world, which have already accomplished so much. 


NicHoLtas Murray BUTLER 


CotumBIA UNIVERSITY 
in the City of New York 
March 1, 1928 


THE DRAFTING 
OF THE COVENANT 


The documental material is generally quoted or 
copied literally, even when there seems to be am 


obvious slip in the wording of the writer or tran- 
scriber; on the other hand, such matters as spell- 
ing and accents have generally been put right. 


THE DRAFTING OF THE COVENANT 


CHAPTER I 
EARLY DRAFTS 


WHENEVER there must be a meeting of minds in the prepara- 
tion of any agreement, there is one apparently universal rule 


which always has its influence; that rule is this: any definite de- | 
tailed draft prepared in advance by one of the parties will to | 
some extent appear in the final text, not only in principle but even | 


in language. No matter how many differences of opinion may 
develop, no matter how much the various papers may be recast 
and amended, something of the beginning is left at the end. In 
the drafting of the Covenant of the League of Nations may be 
found very striking instances of this most interesting result of 
written words. 

The first official document which it is necessary here to con- 
sider is the Draft Convention of Lord Phillimore’s Committee,? 
submitted to the British Government on March 20, 1918. I start 
with this paper because it was the first formulation of League of 
Nations suggestions in a definite text under Governmental direc- 
tion. Strictly speaking, the Phillimore Draft Convention (Docu- 
ment 1 of this collection)? was not put forward as a proposal of 
the British Government, but merely circulated. Of course there was 
much background to this work of Lord Phillimore’s Committee ; 
some of it is mentioned in their Interim Report, which was ad- 
dressed to Mr. Balfour, then Foreign Secretary, and was as fol- 
lows :3 


*Their official title was “The Committee on the League of Nations.” 
The members of the Committee were: 


The Right Hon. Sir Walter G. F. Phillimore, Bart., P.C. (Chairman). 


Professor A. F. Pollard, M.A. Sir Julian S. Corbett. 
Dr. J. Holland Rose, Litt. D. Sir Eyre Crowe, K.C.M.G. 
Sir William Tyrrell, K.C.M.G. NrviGig be dunstaKoG., CB. 


Mr. A. R. Kennedy (Secretary). 


? Documents referred to by numbers are in Volume II of this work. 
* With the Report is the following note by Lord Robert Cecil: 


“This Interim Report of Sir Walter Phillimore’s Committee is circulated to 
the War Cabinet for their consideration. It is suggested that a copy should 


3 


4 THE DRAFTING OF THE COVENANT 


1. We had the honour to be appointed by you as a Committee 
to enquire particularly from a judicial and historical point of view 
into the various schemes for establishing by means of a League of 
Nations, or other device, some alternative to war as a means of 
settling international disputes, to report on their practicability, to 
suggest amendments, or to elaborate a further scheme if on con- 
sideration it should be deemed possible and expedient, and to 
report to you the result of our deliberations. 

2. We have held nine meetings in which our attention has been 
directed mainly to the various proposals for a League of Nations 
which were formulated in the 16th and 17th centuries and to those 
which have been put forward since the recent revival of the 
movement. 

3. With regard to other methods of international combinations 
for avoiding war which were actually attempted during the 19th 
century, we have not completed our investigation, and without 
further inquiry into past political experience we would offer no 
opinion as to whether a modification of those methods or a formal 
League of Nations is the more promising means of securing the 
end in view. 

4. The earlier projects which aimed at setting up a kind of 
European Confederation with a supernational authority we have 
after consideration rejected, feeling that international opinion is 
not ripe for so drastic a pooling of sovereignty, and that the only 
feasible method of securing the object is by way of cooperation or 
possibly a treaty of alliance on the lines of the more recent schemes. 

5. We have accordingly carefully considered those schemes, 
all of which substitute, in place of the earlier idea of confederation, 
a system working by means of a permanent conference and an 
arbitral tribunal. None of them, however, in their entirety appear 
to your Committee to be practicable or likely to meet with accept- 
ance. We have therefore, drafted a Convention in which, while 
embodying their leading ideas, we have endeavoured to avoid their 
more obvious stumbling blocks. 

6. On the assumption that a League of Nations may be re- 
garded as a possible solution of the problem, we now submit 
this draft as the best we have been able to devise, to serve as a 
basis for an interchange of views. In making it the subject of an 
Interim Report we have been influenced by the consideration that 
His Majesty’s Government may regard it as desirable to initiate 
such an interchange of views before the termination of the war. 

7. The primary object of the proposed alliance will be that 


‘be sent to Presi@ent Wilson confidentially, so that if he thinks right he may 
_ have it considered by an American expert committee. Copies should perhaps 
' also be sent to the Dominions in view of the approaching conference.” 


EARLY DRAFTS 5 


whatever happens peace shall be preserved between members of 
the alliance. The secondary object will be the provision of means 
for disposing of disputes which may arise between the members 
of the alliance. Our draft treaty, therefore, divides itself into 
four parts; Articles 1 and 2, which stand very much by them- 
selves, are to provide for the avoidance of war; Articles 3 to 12, 
for the pacific settlement of international disputes; Articles 13 to 
17, for the relations between the allied States and States not party 
to the Convention; while Article 18 provides that this treaty shall 
override all others. 

8. The mutual covenant not to go to war is contained in 
Article 1. We have not covered all cases. We have provided 
that no State shall go to war without previously submitting the 
matter to arbitration or to the Conference of the League, nor while 
the discussion is pending in debate, nor shall seek any further satis- 
faction than that which the award or the recommendation of the 
Conference requires. This leaves untouched the case in which the 
Conference can make no recommendation, but we are in great hope 
that this event will be rare. There will be every inducement to the 
Conference to find a mode of escaping from war, and, at any 
rate, the time will be so long drawn out that passions will have 
cooled. The other case omitted is when a State that has given 
cause of offense refuses to abide by the award or the recom- 
mendation of the Conference. It might be suggested that in this 
case the whole power of the League should be used to enforce 
submission, but we have felt a doubt whether States would con- 
tract to do this, and still greater doubt whether, when the time 
came, they would fulfil their contract. Most of the writers on 
this subject have hesitated to recommend such a provision. 

g. It will be noted that the proposed moratorium only extends 
to actual warfare. Some writers have suggested that there should 
be no warlike preparations during the period. We have rejected 
this 

a. because it would be difficult to ascertain what were 
special warlike preparations; 

b. because we would designedly give an opportunity to the 
most peaceful State which had not kept its armaments 
up to a high pitch to improve them during the period of 
the moratorium, in this way discounting to some extent 
the advantages which a State which kept up excessive 
armaments would otherwise have had. 


10. Article 2 contains the sanction proposed. We have de- 
sired to make it as weighty as possible. We have, therefore, made 
it unanimous and automatic, and one to which each State must 
contribute its force without waiting for the others, but we have 


THE DRAFTING OF THE COVENANT 


recognized that some States may not be able to make, at any 
rate in certain cases, an effective contribution of military or naval 
force. We have accordingly provided that such States shall at the 
least take the financial, economic, and other measures indicated 
in the Article. 

11. Article 3 is adapted from Article 38 of The Hague Con- 
vention for the Pacific Settlement of International Disputes, 
1907. 

12. Article 4 expands an idea, the germ of which appears in 
Article 48 of the same Convention; it gives the power to a State 
to apply ex parte to the Conference of the Allied States. Refer- 
ence to arbitration requires the consent of both parties, but this 
provision will enable any one State, party to the dispute, to bring 
its case before the Conference even if the other State is not willing. 
We have been careful to remember that there will be much jealousy, 
particularly among the continental Powers of Europe, of any 
provision which will appear to infringe their independence or 
sovereignty, and therefore we do not give the Conference, thus 
appealed to, any power of ‘adjudication, but only one of 
recommendation. 

13. Article 5—It is in our view desirable that if the Con- 
ference be appealed to it shall not fail to act, and, as in cases 
which will come under Article 12 speedy action would be re- 
quired, we have made the assembly of the Conference as it were 
automatic. It must be a matter for diplomatic determination to 
settle its seat. If the League should be in the first place confined 
to the present Allies, a convenient seat might be Versailles. If 
the League should embrace a number of States, and some of 
those at present neutral, it might be better to place the seat in 
Holland or Switzerland, or possibly in Belgium, but it should be 
a fixed place, and in this connection we have been much impressed 
by Lieutenant-Colonel Sir Maurice Hankey’s memorandum and 
address to us, in which he pointed out the great advantage arising 
from constant mutual intercourse between the representatives of 
nations, and we therefore propose that, subject to the power of 
substitution or addition, the ordinary diplomatic representatives 
at the capital which is the seat of the Conference should repre- 
sent their respective States. 

14. The next questions which enter into consideration in 
Articles 7, 19, II, and 12 are whether the decisions of the Confer- 
ence must be unanimous, and whether, if any resolutions may be 
passed by a majority, the voting strength of the States should 
differ. We have concluded to eliminate the States parties to the 
dispute, but the precedents in favour of unanimity are so invaria- 
ble that we have not seen our way to give power to a majority, or 
even a preponderant majority, to issue a definite recommendation, 


EARLY .DRAFTS 7 


though we are aware that many English writers express themselves 
in a contrary sense. On the other hand, we have felt that for all 
preliminary work the vote of a majority should be sufficient. We 
may add that we have been rather loath to frame a scheme under 
which our own country should be rendered liable to have a recom- 
mendation passed against it by a majority vote in a matter vitally 
affecting the national interests, and that we have also felt that 
if some of the enemy Powers are ever to come into this League 
they would equally be unwilling to submit themselves to such a 
liability. As to the question of the voting strength in cases where 
a majority is to determine, most English and American writers 
have contemplated giving a larger vote to the more important 
Powers, and there are precedents, such as the General Postal 
Union Treaty of 1878 and the Telegraphic Convention of 1897, for 
giving to those Powers which have important colonial possessions 
additional votes in respect of their colonies; but the experience 
obtained during The Hague Conference of 1907 shows that any 
such superiority would be greatly resented by some States, and 
we have shrunk from providing it. 

15. Article 11, as it will be seen, is expressed in an alternative 
form, The first alternative is that which commended itself to 
the majority of the Committee. 

16. Article 12 is a substitutional provision for that power of 
injunction which has been recommended by many English and 
American writers. It has been felt that if there is to be a morato- 
rium, there may be cases of continuing or irreparable injury to 
which the injured State cannot be expected to submit. In order 
to meet this difficulty these writers have taken an idea from the 
legal procedure common to Great Britain and the United States. 
But in applying this procedure to international matters the follow- 
ing objections seem to arise: 


a. If final awards or recommendations are not to be the 
subject of enforcement by the League, it would seem 
illogical that interlocutory awards or recommendations 
should be so enforced. 

b. The aggressive State would certainly resent such an in- 
fringement of its sovereignty and struggle to prevent 
the use of an injunction and the proceeding would almost 
necessarily be so prolonged, particularly if the injunction 
is to be the work of the whole Conference, that the 
interlocutory decision would hardly be reached sooner 
than the final one, and the mischief would have been 
done; 

c. It may be added that such knowledge as any of the 
members of the Committee have of such foreign juris- 


8 THE DRAFTING OF THE COVENANT 


prudence as is founded on the Code de Napoléon, leads 
them to doubt whether the procedure which most nearly 
approaches to the Anglo-American injunction has re- 
ceived the same development or occupies the same 
position of importance which it has with us. 


17. The Committee have, therefore, rejected the idea of 
injunction, and submit this Article as a corrective for hardship 
which might otherwise be worked by the moratorium. 

18. Article 15 requires some observation. The scheme of the 
British League of Nations Society makes the League a defensive 
alliance as against external Powers, and requires all the other 
Allied States to come to the assistance of any one of them “which 
may be attacked by an outside Power which refuses to submit the 
case to an appropriate tribunal or council’; but the American 
League to Enforce Peace has omitted this provision, and only 
one known American speaker or writer has taken the line of the 
British League. We have felt, therefore, that our draft treaty 
might provoke opposition if we inserted a clause obliging the 
Allies to mutual defense against external Powers, and we have 
substituted one which is facultative only. 

19. Under Article 17 we might draw attention to the sug- 
gestion that when the League is once formed any future applicant 
for admission may have terms imposed upon him. This would en- 
able the League to require reparation for past outrages, or to 
insist upon partial disarmament if the military or naval forces of 
the applicant were disproportionate to those of the States already 
in the League. 


Despite great differences both in form and in substance be- 
tween the Phillimore Plan and the Covenant, some of the ideas of 
the Phillimore draft remain in words of its authors; thus the 
language of Article 18 of the Phillimore Plan is not much 
changed in. Article 20 of the Covenant as may be seen from 
reading them side by side: 


PHILLIMORE 


Article 18. A. The Allied 
States severally agree that the 
present Convention abrogates 
all treaty obligations inter se 
inconsistemtt with the terms 
hereof, and that they will not 
enter into any engagements in- 
consistent with the terms 
hereof. 


COVENANT 


Article 20. The Members of 
the League severally agree that 
this Covenant is accepted as 
abrogating all obligations or 
understandings inter se which 
are inconsistent with the terms 
thereof, and solemnly under- 
take that they will not here- 
after enter into any engage- 


EARLY DRAFTS 


B. Where any of the Allied 
States, before becoming party 
to this Convention, shall have 
entered into any treaty impos- 
ing upon it obligations incon- 
sistent with the terms of this 
Convention, it shall be the duty 
of such State to take immedi- 
ate steps to procure its release 
from such obligations. 


ments inconsistent with the 
terms thereof. 

In case any Member of the 
League shall, before becoming 
a Member of the League, have 
undertaken any obligations in- 
consistent with the terms of 
this Covenant, it shall be the 
duty of such Member to take 
immediate steps to procure its 


release from such obligations. 


Indeed the historian will find in the Covenant a great deal of 
the Phillimore Plan. The substance of most of Article 1 of the 
Phillimore Plan, the covenants not to resort to war before arbi- 
tration or its alternative, is in Article 12 of the Covenant; the 
latter part, the agreement of peace with a Power that complies 
with the award or the recommendation regarding the dispute, 
being in Articles 13 and 15. The economic sanctions of Article 
16 of the Covenant are quite similar to Article 3 of the Philli- 
more Plan; and its provisions in Articles 3 to 11 for the pacific 
settlement of international disputes contain much that is found 
in Articles 13 and 15 of the Covenant on this subject. Simi- 
larly the provisions regarding outside States found in Article 17 
of the Covenant have to some extent as their basis Articles 13 to 
16 of the Phillimore Plan. 

Like the Covenant, the Phillimore Plan did not attempt in 
the agreements which it provided against war ito cover all pos- 
sible cases; and similarly it avoided obligatory arbitration; and 
it is an interesting circumstance that after consideration the 
Phillimore Committee rejected the suggestion that there should 
be no “warlike preparations” during the period that a dispute 
was pending, a suggestion that was proposed at Paris by the 
Japanese delegation, and that was at one time accepted by the 
Commission on the League of Nations and known as Article 12 a, 
although finally eliminated from the text. 

Still, while much of the Phillimore Plan is in the Covenant, 
some of it is not and there is a great deal of the Covenant which 
is not forecast by the Phillimore Plan at all. The Phillimore 
Committee seem to have envisaged the Conference as a meeting 
that came together only in case of serious dispute or crisis. De- 
spite the memorandum of Sir Maurice Hankey which is men- 


+See page 454. 


IO THE DRAFTING OF THE COVENANT 


tioned in the Report, the Phillimore Plan did not provide for — 
any regularly recurrent meetings at all; its Conference was the 
diplomatic group in a particular Capital which came together 
when they were convened at a time of stress. Incidentally this 
left out the British Dominions entirely—perhaps March, 1918, 
was too early to think of them as we do now; the idea of struc- 
tural permanence, of an organization, was absent, for there was 
no Secretariat; and there was to be no smaller group of Powers, 
such as the Council now is, for it seems that the Phillimore Com- 
mittee were not thinking of a universal League but, at least for 
the time being, of quite a limited League; although they speak 
in their Report of the League embracing “a number of States 
and some of those at present neutral,’ they thought also of the 
possibility that the League should “in the first place be confined 
to the present Allies;” there is nothing in the Phillimore draft 
regarding a Permanent Court of International Justice or regard- 
ing disarmament; and it contained no provision for international 
cooperation through the League in humanitarian, social and other 
matters of international interest; and there was nothing about 
open diplomacy and naturally enough nothing about Mandates 
and no Article Io. 

Despite the obvious origin in the Phillimore Plan of much 
of what is now in the Covenant, the Phillimore League, if I may 
call it so, would have been a League not only limited in numbers, 
but limited in function to the consideration of disputes on urgent 
occasions and with the attempt and in the hope of preventing war 
as the result. 

In chronological order the next paper is the Report of the 
Committee appointed by the French Government to examine the 
conditions on which a League of Nations might be constituted. 
This is dated June 8, 1918.4. I do not know when it was first 
seen by President Wilson or by Colonel House. Its text was be- 
fore me some time in the summer of 1918 together with the 
comments thereon by Lord Phillimore’s Committee. 

This “Note by Lord Phillimore’s Committee,” dated August 
9, 1918, addressed to Mr. Balfour, contains an accurate and con- 
venient summary of the French Plan, so I print it here: 


1. In compliance with your request we have taken into our con- 
sideration the Report dated the 8th June, 1918, of the Commit- 
1For the text, see (in Document 20) Annex 1 to the French minutes of 


the First Meeting of the Commission on the League of Nations. There is an 
English translation in the English minutes (Document 19). 


EARLY DRAFTS II 


tee appointed by the French Government to examine the con- 
ditions on which a League of Nations can be constituted for the 
preservation of peace on the basis of right. 

2. We observe that the Report represents the result of the 
preliminary enquiries of the Committee; that the French Govern- 
ment had intended to prepare definite proposals for submission 
to the Allied Governments, but, owing to the pressure of other 
affairs, has not had the necessary opportunity of doing so; and 
that the Report has been communicated at this stage as an aid to 
future discussion. This being so, it is not unnatural that the 
Report should consist of a statement rather of principles than of 
concrete proposals. It contains an outline scheme of a League 
of Nations, and the general nature of this scheme sufficiently 
accords with our proposals to justify the belief that an interchange 
of views might result in substantial agreement. 

3. The scheme indicated in the Report may be summarily 
stated as follows: There is to be an International Council, con- 
sisting of the responsible heads of the States parties to the League 
or their Delegates which is to meet yearly. It is to appoint a 
committee which is to be in permanent session charged with the 
duty of preparing the work of the Council, summoning it and pre- 
serving its archives. The committee is to consist of fifteen persons 
appointed for a definite period of time. Justiciable disputes are 
to go to an International Tribunal, other disputes to the Council. 
Diplomatic, juridical, and economic sanctions are provided, and 
the decisions of both the Tribunal and the Council are to be en- 
forced, if need be, by joint economic, military, and naval measures, 
The Council may call upon the parties to the League to employ 
similar measures against an outside State “seeking to impose its 
will upon another,” and it is contemplated that the forces of the 
League may be used against an outside State refusing to submit a 
dispute with a member of the League to the Tribunal or the Coun- 
cil, as the case may be. The forces at the disposal of the League 
are to be provided by contingents supplied by the States parties 
to it in proportions to be settled by the Council, and the nucleus 
of an international military staff is to be formed. The question of 
limitation of armaments is reserved for subsequent consideration. 

4. Such in general is the scheme outlined. It is not quite 
clear what States are to be admitted to the League, but there is 
a passage in the Report (Section 1, Paragraph 3) which implies 
the exclusion of the Central Powers so long as they retain their 
present forms of government. It is not explicitly laid down that 
a party to the League is not to go to war before submission of the 
dispute, though we judge that this is intended to be a term of the 
Treaty. The Report is silent on the question whether a majority 
or unanimity is required for the decision of the Council, or of the 


I2 THE DRAFTING OF THE COVENANT 


Standing Committee, or for the election of the Standing Com- 
mittee. Section IV, I (4) which deals with the reference to 
arbitration, is not effective for the purpose of enforcing arbi- 
tration, which apparently is the object in view. Further, 
the proposals, so far as they relate to the provision of an 
international army, the enforcement of decisions of the Tribunal 
and the Council, and the obligation of the parties to the League 
to make common cause against an outside State in certain events 
go beyond what we have been prepared to recommend. 

5. Other criticisms of the Report might be made, but we do 
not think that any useful purpose would be served by attempting 
an exhaustive comment. As already mentioned, the Report is 
not, like our own, cast in the form of proposals; and the use of 
somewhat general language—to be expected in a statement of 
principles—has enabled the Committee to put forward ideas, which 
in reducing our scheme to definite articles of a draft treaty, we 
have had on consideration, sometimes with reluctance, to reject. 

6. We are satisfied, however, that there is sufficient agree- 
ment between the French Committee’s Report and our Report to 
encourage His Majesty’s Government to proceed further in the 
direction of securing general agreement. 


President Wilson’s advocacy of a League of Nations had 
been very definitely proclaimed in the last of his famous Four- 
teen Points of January 8, 1918: 


A general association of nations must be formed under specific 
covenants for the purpose of affording mutual guarantees of 
political independence and territorial integrity to great and small 
states alike. 


It was very natural that Mr. Wilson, with the Phillimore 
Plan before him, should turn to Colonel House and his advisers 
for a plan embodying his views. 

The House Draft (Document 2) was forwarded to Wilson 
on July 16, 1918, and, as the following letter of transmittal 
shows, it adopted various proposals of the Phillimore Plan (“the 
British Draft’ of the letter) : 


I am enclosing you the draft for a League of Nations. The 
Preamble and Articles 1, 2, and 3 are the keystone of the arch. 

It is absolutely essential for the peoples of the world to 
realize that they can never have international peace and order if 
they permit their representatives to sanction the unmoral prac- 
tices of the past. Every large nation, as you know, has been 


EARLY DRAFTS 13 


guilty. Bismarck’s forgery of a telegram in order to force a war 
on France is a notable modern instance. Roosevelt’s rape at 
Panama brings it closely home. If these things had been done by 
private individuals they would have been classed as criminals. 

Articles 1, 2, and 3 might well come under the Preamble. 
The reason they are segregated is that it gives them emphasis and 
makes the pledge binding. 

No. 4 was written with the intention of satisfying those who 
would be distrustful of Germany in the event she became a 
signatory power. 

It is necessary I think to do away with the abominable 
custom of espionage, but to abolish it and leave some dishonor- 
able nation free to surreptitiously prepare for war would be a 
mistake. It is to be remembered that nations are even more sus- 
picious of one another than individuals, and such suspicion, as in 
the case of individuals, is nine times out of ten unfounded. In- 
stead of letting this condition grow there should be some way in 
which the truth could be openly arrived at. 

No. 6 is taken largely from Article 5 of the British Draft. 
Two alternatives are named for the seat of meetings because it 
is conceivable that there might be trouble between Holland and 
Belgium, and if either of them represented Z or Y it might be 
necessary to move the conference to Z. 

No. 9. The first and last sentences in this are taken verbatim 
from Article 7 of the British Draft. I interlarded a sentence pro- 
viding for a Secretariat and for the funds to maintain it. 

To all intents and purposes the representatives of the con- 
tracting powers become automatically an International Parliament, 
and I am sure it will be necessary for them to be in almost continu- 
ous session. I believe that it will be a place of such power and 
consequence that the contracting parties will send their leading 
statesmen to represent them. It will be a greater honor to become 
a member of this body than to hold any other appointive position in 
the world, and it is probable that ex-Presidents, ex-Prime 
Ministers, and ex-Chancellors will be chosen. 

No. 10 provides for an International Court to have juris- 
diction to determine certain questions which are now determined 
in many countries in courts of last resort. This court should be 
smaller than fifteen members. 

In the past I have been opposed to a court, but in working 
the matter out it has seemed to me a necessary part of the ma- 
chinery. In time the court might well prove the strongest part 
of it. 

No. II was written largely to conform with the laws and 
practices of certain nations, particularly the Latin American 
Republics. 


14 THE DRAFTING OF THE COVENANT 


No. 12 has in mind the possibility of using, if desired, courts 
of last resort now in being, as a medium for the settlement of 
disputes in the event other methods prescribed do not appeal to 
certain nations. I also had in mind that if such a provision were 
a part of the Covenant, it would have a tendency to make all 
courts of last appeal broader and less biased in passing upon 
international questions. 

Nos. 16, 17, 18, and 19 are obvious and in the event that it 
is desirable to have a League limited to the Great Powers, these 
articles would force every nation not a member of the League to 
submit their disputes to the League, or use the forms of settlement 
prescribed by it. 

Articles 13, 14, and 16 of the British Draft seek in a measure 
to accomplish the same purpose, but in an entirely different way. 

No. 20 was written with the thought that it would not do to 
have territorial guarantees inflexible. It is quite conceivable that 
conditions might so change in the course of time as to make it a 
serious hardship for certain portions of one nation to continue 
‘under the government of that nation. For instance, it is con- 

_/ feeivable that Canada might sometime wish to become a part of 

//the United States. It is also a possibility that Chihuahua, 
Coahuila or Lower California might desire to become a part of 
this country and with the consent in each instance of the mother 
country. 

No. 22. The first sentence of this article is taken verbatim 
from the British Article 17. I did not use their second sentence for 
the reason that it seemed to point to Germany, and I have worded 
the second sentence of No. 22 differently to avoid this. 

No. 23 is almost a verbatim copy of Article 1 of the British. 


I was consulted in connection with the preparation of this 
draft of Colonel House at Magnolia, Massachusetts, in the early 
summer of 1918. However, while I made suggestions about the 
draft, I was not given a copy of it and at the time made no 
written memorandum of its contents. It is perhaps literally true 
that no one then had a copy of this draft of House except Presi- 
dent Wilson and House himself. 

In the draft of Colonel House may be found not only much 
of the Phillimore Plan but also some other beginnings of the 
present Covenant. Compare his Article 5 with the first words 
on /Article) i 1): 


ARTICLE 5 (House) ARTICLE 11 (Covenant) 


Any war or threat of war is Any war or threat of war, 
a matter of concern to the whether immediately affecting 


EARLY DRAFTS 15 


- League of Nations, and to the any of the Members of the 
Powers, members thereof. League or not, is hereby de- 
clared a matter of concern to 

the whole League. 


Similarly a disarmament Article (21) appears in the House 
Draft, and to a considerable extent the words of it are the words 
of Article 8 of the Covenant.t_ The House Draft (Article 20) 
contains the guarantees of Article 10 subject, however, to terri- 
torial changes in accordance with the views of three-fourths of 
“the Delegates” pursuant to the principle of self-determination. 
It also made provision for a Permanent Court, as to which mat- 
ter House said frankly in his covering letter he had changed his 
mind. House also had the vision to provide for a Secretariat and 
for the funds to maintain it, for he thought that the Conference 
would be “in almost continuous session” and that the leading 
statesmen of the various countries would represent them before it. 

In line with House’s ideas about a Secretariat, his draft ap- 
pears to have envisaged meetings of the Conference not only for 
the purpose of settling disputes, technically pending, as in the 
Phillimore Plan, but whenever desirable in the interests of peace 
(Article 7). 

On the other hand, some of the provisions of the House Draft 
which he regarded as of the utmost importance, “the keystone of 
the arch” he called them, the provisions against espionage and so 
on, (see Preamble and Articles 1-4) entirely disappeared, unless 
they may be said to remain in the Covenant Preamble in the 
phrase, “open, just and honorable relations between Nations.” 
The House Draft laid even more stress on arbitration than did 
the Phillimore Plan. Indeed the House Draft went the whole way 
toward obligatory arbitration; every dispute that was not settled 
by diplomacy went either to the International Court or to arbi- 
trators for final settlement. The sanctions of House were not 
war, at least in terms, but loss of economic and commercial privi- 
leges and finally, blockade. 

President Wilson’s First Draft (Document 3) had for its 
basis the suggestions of Colonel House.? All I knew of it at 
the time was that in the late summer of 1918, Colonel House 
showed it to me at Magnolia; later on I made from memory a 


*Cf. Wilson’s language in his Second Inaugural Address of March 5, 1017: 
“National armaments should be limited to the necessities of national order and 
domestic safety.” 

*See Woodrow Wilson and World Settlement, by R. S. Baker, vol. i, 
p. 218 sqg. References hereafter to “Baker” are to this work. 


iceemneiattiemememuemetamemenh coset 


16 THE DRAFTING OF THE COVENANT 


very brief and rough memorandum of the subjects which it 
covered. 

This First Draft of Wilson took most of its thirteen articles 
from the draft of House, with some changes. Thus, the first 
four articles regarding the Body of Delegates, their meetings and 
procedure, the territorial guarantees and disarmament are sub- 
stantially the provisions of House; so are the provisions regard- 
ing arbitration, which in the Wilson draft are Articles 5 and 9, 
although these are somewhat expanded. The sanctions of Wilson 
(Articles 6, 7 and 10) are much more explicit and far reaching 
than those of House in respect of military operations ; thus in Arti- 
cle 7 where blockade is mentioned, Wilson adds the words “and 
to use any force that may be necessary to accomplish that ob- 
ject.” In the case of a war commenced by an outside Power 
refusing arbitration, the draft of House (Article 18) merely pro- 
vided that any of the Signatories “may come to the assistance of 
the Contracting Power;’ Wilson (Arte aa makes this an 
absolute obligation in sweeping terms ?~ 


The Contracting Powers shall also unite in coming to the 
assistance of the Contracting Power against which hostile action 
has been taken, combining their armed forces in its behalf. 


Various proposals of House were omitted by Wilson. He 
left out House’s first four articles about espionage, etc., and also 
the article for the setting up of an International Court, although 
the expression “judicial decision” remains in various instances in 
the Wilson draft (e. g. Article 9). 

Wilson wrote his own Preamble, abandoning in this regard 
the House Draft entirely and what he wrote then became very 
nearly the Preamble of the Covenant. 

I have given above a comparison of some of the House lan- 
guage with Article 11 of the Covenant. The comparison may 
now be carried a little farther by seeing how Wilson expanded 
the language, laying his version beside the first sentence of 
Article 11: 


ARTICLE 8 (Wilson) ARTICLE II (Covenant) 


Any war or threat of war Any war or threat of war, 
whether immediately affecting whether immediately affecting 
any of the Contracting Powers any of the Members of the 
or not, is hereby declared a League or not, is hereby de- 
matter of concern to the  clared a matter of concern to 


EARLY DRAFTS LI. 


League of Nations and to all the whole League, and the 
the Powers signatory hereto, League shall take any action 
and those Powers hereby re- that may be deemed wise and 
serve the right to take any effectual to safeguard the 
action that may be deemed peace of nations. 

wise and effectual to safeguard 

the peace of nations. 


Wilson’s first Covenant (Document 3) may be summed up 
by saying that it provided for organized meetings of representa- 
tives of the Powers of the world (what we call now the Assem- 
bly), with a Secretariat, qualified guarantees of territorial inde- 
pendence, disarmament and obligatory arbitration as to Members 
of the League, both inter se and as against any outside Power, 
with a uniting of forces against any State that rejected arbitra- 
tion and went to war. In these latter features, indeed, this First 
Draft of Wilson more nearly resembles the Protocol of Geneva 
than it does the present Covenant. 


CHAPTER II 
AMERICAN SUGGESTIONS 


DuRING 1918, as a member of the Committee appointed by 
Secretary of State Lansing to consider legal questions which 
might arise at the Peace Conference,1 I had devoted much of 
my time to a consideration of the foreign policy of President 
Wilson as announced in diplomatic correspondence, speeches and 
messages to Congress. Among the papers which I had prepared 
was a monograph called “The American Program and Inter- 
national law,” in which I reviewed substantially everything on 
foreign policy that President Wilson had said or written up to 
that time. The length of that monograph forbids its being 
printed here; but I shall occasionally refer to it as its formula- 
tion of my own views of President Wilson’s program had a 
direct influence on the work that I did at Paris. 

President Wilson reached Paris on December 14, 1918, 
thirty-three days after the Armistice with Germany. 

Prior to his arrival and to my detail as Technical Adviser to 
the American Commission to Negotiate Peace I had been at- 
tached to Colonel House’s Mission in Paris, as Legal Adviser. 

During the latter part of November, I had prepared certain 
drafts of my own regarding an Association of Nations. I used 
the word “Association” because it was the word which President 
‘Wilson used in his Fourteenth Point; but also I preferred it to 
the word “League”; the idea of the Covenant is much more 
nearly expressed by the word “Association” than by any other; 
and it is a much better equivalent of the French, “Société”; I 
have always regarded it as very unfortunate that the word “Asso- 
ciation” was not used in the Covenant. Words, as distinguished 
from realities, have a very great influence on the average intelli- 
gence; people thought that a “League” could not be an “Associa- 
tion”; and Mr. Harding, by using the word “Association” as if 
it was a new idea of his own, confused sentiment in the United 
States all the more. 


uke other members of the Committee were Mr. Lester H. Woolsey, 
Solicitor of the Department of State, and Dr. James Brown Scott. 


18 


AMERICAN SUGGESTIONS 19 


Those draft papers of mine consisted of an Agreement for 
an Association of Nations, a Declaration for Open Diplomacy 
and a Declaration for Equality of Trade Conditions, accompa- 
nied by some comments. Colonel House had copies of these 
papers on December 1, 1918. They were written, as I told 
Colonel House at the time, chiefly with the idea of bringing into 
view the difficulties which all the questions presented, for as al- 
ways, such difficulties are more clearly brought forward by a 
draft agreement than by a volume of general discussion. 

It is not worth while to reprint those papers, but there are one 
or two points in them that I shall mention. 

Open Diplomacy was the First of President Wilson’s Four- 
teen Points! and in my monograph on the American Program J 
had written at some length on the subject. There was no allu- 
sion to Open Diplomacy in the Phillimore Plan, in the House 
Drait, in Wilson’s earliest or Washington Draft (Document 3) 
or in his Second Draft, his First Paris Draft (see Document 7). 
My formulation provided in substance for publicity of all treaties 
and international agreements, existing and future. 

Economic Equality was the Third of President Wilson’s 
Fourteen Points, which read as follows: 


The removal, so far as possible, of all economic barriers and 
the establishment of an equality of trade conditions among all 
the nations consenting to the peace and associating themselves 
for its maintenance. 


As a counter move against both the German notion of eco- 
nomic domination of other countries and the ideas of the Allies, 
of 1916, nothing could have been more sound. But the practical 
difficulties in the way of any general agreement on the question 
were almost insuperable. I had discussed some of these in the 
monograph mentioned above.? 


*The Point on Open Diplomacy read thus: 

“Open covenants of peace openly arrived at, after which there shall be no 
private international understandings of any kind but diplomacy shall proceed 
always frankly and in the public view.’ 

With it should be read the letter of Wilson of March 12, 1918, to Secretary 
of State Lansing in which he said: 

. . . . certainly when I pronounced for open diplomacy I meant, not that 
there should be no private discussion of delicate matters, but that no secret 
agreements of any sort should be entered into, and that all international rela- 
tions when fixed should be open, aboveboard and explicit.” 

* The following paragraphs are extracted from that discussion: 

The principle of equality of trade may be understood to mean that as to 
any given country, all other countries and their nationals are on an equal 


20 THE DRAFTING OF THE COVENANT 


In the first two drafts of Wilson, his Washington Draft and 


footing in matters of tariff rates, port dues, traffic rates, inspection laws and 
other matters which bear on international traffic. The principle is not under- 
stood in any way to limit national action in carrying out national policy. For 
example, a nation may prohibit the entry or export of a particular commodity. 
It may close a port; it may impose a high tariff, or a low tariff, or no tariff 
at all; it may provide such administrative regulations of customs, of inspection, 
and so on, as it sees fit, provided that in each case all other nations are 
treated alike. Furthermore, it is not understood that equality of trade has 
any bearing on domestic trade as such. A nation would (so far as the 
principle of equality is concerned) be free to confine domestic trade to its 
own nationals, or a portion of such trade, as for instance, coastwise shipping, 
but here again it could not admit one country and exclude another, or admit 
one country on more favorable terms than another. 


* * * * * * 


One vital point involved in the meaning of the principle of equality has not 
been noticed. That is, when is trade to be regarded as international and not 
domestic for this purpose, or in other words, what is for this purpose to be 
considered a nation? To put the question concretely, is India for example to 
be considered a nation as distinct from Great Britain and from Canada? Are 
the Philippines to be considered a nation as distinct from the United States? 
Results of enormous practical importance are involved in the answers given 
to such inquiries. Obviously if the British Empire is to be considered a unit 
for this purpose and every kind of regulation and preference “within the 
(British) Empire’ is to be permitted, the whole principle would be defeated 
in advance. It is impossible to suppose that equality of trade would in any 
substantial view be reached if Great Britain could pass laws favoring, as 
against the rest of the world, the trade of Lancashire with the 300,000,000 
people of India. 


* * * * * * 


Further, the principle of equality as heretofore outlined, would if rigidly 
applied in its strict letter, prevent reciprocity treaties and similar bargaining 
trade relations of all kinds, either between independent states, or between 
a state and a dependency or a colony. That in general, such arrangements 
are wholly contrary to the spirit of equality may be admitted, yet particular 
instances may well be allowed as apparent but .not real exceptions. The 
idea of equality of trade is a practical idea and not a group of words, 
and reciprocity between Canada and Newfoundland, or Australia and New 
feat or Norway and Sweden could not seriously be thought to impair the 
idea. 


* * * * * * 


Further, when the principle of the open door is to apply, the application 
should not only be rigid, but the manner of the application should be for the 
benefit of the country to which the door leads. Not only are indirect or 
concealed preferences here as objectionable as elsewhere, but the scheme 
as a whole should benefit the dependent country and not any other country, 
or even all other countries. A high tariff may be as beneficial to Uganda as 
to Germany and if a high tariff is beneficial there is no reason why those who 
spore for Uganda should not be allowed to choose a high tariff if they so 

ecide. 

The principle of equality also requires that a country such as China should 
be free to adopt her own economic policy for her own benefit, or rather for 
her own benefit as she sees it and not as any others may see it; and the 
pernicious practice of pledging customs receipts or other revenues for pay- 
ment of loans, with an agreement neither to raise nor lower the stated rates 
lest the receipt of taxes should be diminished, which is a pledge of the 
debtor’s sovereignty pro tanto to the creditor, should be abolished if such 
states as China are to decide their own destinies. 


* * * * * * 


AMERICAN SUGGESTIONS 21 


his earliest Paris Draft,! there was no mention of Economic 
Equality. There were some who thought that a general Con- 
vention on the question might be entered into; indeed, as will 
later appear,” the British made proposals on the subject; but it 
always seemed to me that the political obstacles in the way of 
such a treaty could not be overcome even if all the technical 
questions could be satisfactorily answered, which was at least 
highly doubtful; and the comment that I made on my own draft 
at the time was that “it only emphasizes the very great difficulties 
of the whole subject’; and in the Covenant there was finally (and 
I think wisely) no more than this very general statement of prin- 
ciple in Article 23 (e): 


Subject to and in accordance with the provisions of inter- 
national conventions existing or hereafter to be agreed upon, 
the Members of the League... 


(e) will make provision to secure and maintain freedom 
of communications and of transit and equitable treatment for 
the commerce of all Members of the League. . . . 


Any attempt at more might have been fatal or impossible or 
both. 

However, as the last of the eight Articles of my draft Decla- 
ration for Equality of Trade Conditions did, in a changed form, 


Again, government ownership in vast fields of industry will open up 
problems in international intercourse entirely new. Obviously if two govern- 
ments are competing in the same business, or if many states are engaged in 
business, disputes will arise such as now arise in commercial affairs between 
merchants and traders; that such disputes should be affected one way or 
another by theories of sovereignty, or should exclusively be treated through 
the “diplomatic channel” would be simply to provide new grounds for war, 
after elaborate efforts spent and it may even be supposed success achieved, 
in eliminating most of those heretofore available. Ideas of sovereignty must 
in many ways be modified or abandoned, and if the state is to be in business, 
the state must leave its state robes at the foreign office and go to business 
in a business suit. 

The United States has pointed out a way by which these results may be 
reached without loss of dignity, namely, the formation of corporations owned 
by the government. Whether this way is generally followed or not, a state 
must act in business like any honest trader, submit its disputes to any court 
in any jurisdiction where it does business and has property, and expect to 
lose some of its disputes and pay accordingly. 

It will, therefore, be necessary to formulate a rule of international law 
of substantially the following purport: 


“A state engaged in commerce shall not in respect thereof have 
or be deemed to have any of the rights, privileges, immunities, duties, 
or obligations of sovereignty.” 

*See Document 7. 
*See Document 4, and page 33. 


22 THE DRAFTING OF THE COVENANT 


get into the Treaty of Versailles, I digress here to say something 
about it. The point is now one of great and increasing commer- 
cial and legal importance.* 


This Article as I wrote it read thus: 


A State engaged in trade or commerce shall not in respect 
thereof have or be deemed to have any rights, privileges, immuni- 
ties, duties or obligations of sovereignty. 


and my note on this Article at the time was as follows: 


The progress of States toward what is vaguely called “Social- 
ism” or “Nationalization of Industry” requires the formulation 
of rules of international law not now existing. It is the law in 
the United States that a State which engages in a commercial 
transaction cannot, when in Court, escape the general rules of 
law by reason of its sovereignty, although it may not be sued. 
Considering the enormous possibilities of this subject for the 
future, it is believed that a State should neither be benefited nor 
burdened by the rules attached to the question of sovereignty when 
commercial transactions are involved. Article 8 has been drawn 
with this end in view. It should be added that the rule therein 
formulated would, in respect of commercial transactions, place a 
neutral State in time of war in the same situation as one of its 
citizens or subjects. The whole question is one of great interest 
to the United States in view of its present ownership (through 
the medium of a corporation) of a very large merchant fleet. 


In the Treaty of Versailles this proposed rule of law, which 
ought to be and of necessity must come to be the rule of the 
world, was made to apply to Germany alone, in favor of the 
other Signatories to the Treaty and without reciprocity, by Ar- 
ticle 281 reading as follows: 


If the German Government engages in international trade, it 
shall not in respect thereof have or be deemed to have any rights, 
privileges or immunities of sovereignty. 


As is told in the book of Mr. Lansing,? he wrote to Presi- 
dent Wilson on December 23, 1918, enclosing various drafts 
which were called “Suggested Draft of Articles for Discussion,” 

*See “Legal Status of Government Ships Employed in Commerce,” by 


J. W. Garner, A. J. I. L., vol. xx, p. 759. 
? The Peace Negotiations, p. 48 sqq. 


AMERICAN SUGGESTIONS 23 


“Suggestions as to an International Council for Discussion” and 
a memorandum on “The Constitutional Power to Provide Co- 
ercion in a Treaty.” 

It is unnecessary to review these papers in detail; but one com- 
ment of Mr. Lansing on the draft entitled “Suggestions as to an 
International Council’ should I think be answered. As to this 
Lansing says :1 


It should be noted that the basic principle is the equality of 
nations. No special privileges are granted to the major powers 
in the conduct of the organization. The rights and obligations 
of one member of the League are no more and no less than 
those of every other member. It is based on international demo- 
cracy and denies international aristocracy. 


Now let me paraphrase one of these sentences a little and 
make it specific instead of general: 


The rights and obligations of Albania as a member of the 
League are no more and no less than those of the British Empire. 


As to such a statement my view is that what it suggests is 
nothing but a form of words having no meaning whatever in 
the actual world in which human beings live. Of course the doc- 
trine of equality of states means that a small and insignificant 
and feeble state is entitled to fair and just treatment on a foot- 
ing of equality before the law with larger neighbors ;? but to say 
that in any international organization or in international affairs 
however conducted or in international relations either of the 
present or of any past whatever, the influence or moral or po- 
litical authority in the world of a few thousand backward people 
organized as an independent unit or state entity has been or 
should be the same as that of a country like the United States, 
for example, is simply to shut one’s eyes to everything except a 
few words of print. All these lawyers’ phrases must yield to 
facts in their application. The civilized peoples of the world 
are generally organized in the form of States; but any recogni- 
tion of the fact that Canada may not technically be a State can- 
not and does not deny to those ten million people an international 
status, whatever essays might be written on the theory of state- 

* op. cit., p. 58. 


?See “The Doctrine of Legal Equality of States,’ by P. J. Baker, British 
Year Book of International Law (1923-1924), p. I. 


24 THE DRAFTING OF THE COVENANT 


hood and sovereignty... Furthermore the States of the world 
are in fact at different stages of development, civilization, size, 
wealth and intelligence. In the science of government, some of 
them are literally centuries ahead of others. Any attempt in the 
conduct of international affairs to wholly disregard these differ- 
ences would be sheer folly. The few civilized negroes who with 
their fellows compose the State we call Liberia are of course as 
much entitled in law and in morals to be protected against ag- 
gression or against international discrimination as is France; 
but to say that Liberia has the same “right to control the affairs 
of the world in times of peace’ as Germany, for example, is to 
advocate a condition of affairs which, if it existed, would simply 
be international anarchy. Happily it never can exist, for if it 
did, no international cooperation, no international organization 
of any kind could exist with it; even a World Court could never 
be constituted if the cultural as well as other superiorities of cer- 
tain Powers of the world were not in some way recognized. 

Mr. Lansing on December 24 gave to Dr. James Brown Scott 
and myself copies of his papers above mentioned. At a confer- 
ence we had had with him on December 21 he had read us one 
of them, the “Articles for Discussion” and at that time I had 
expressed a favorable opinion regarding it; however, on the con- 
stitutional question raised by Lansing’s paper entitled “The Con- 
stitutional Power to provide Coercion in a Treaty,” I expressed 
views not in accord with those of Lansing; and I had then and 
have now no doubt at all in the matter. 

Undoubtedly Congress has the power to declare war and un- 
doubtedly, as Lansing says, that power cannot be delegated; but 
that statement is wholly beside the point in considering the power 
of the United States to agree by treaty to do something in the 
future; in the case supposed to declare war. Unquestionably the 
United States can make such a treaty, i.e. a treaty that our coun- 
try will, in certain contingencies, go to war, an alliance, for 
example. I am not discussing the advisability of such an agree- 
ment, but merely the constitutional power to make it, which in 
my view cannot be seriously questioned. If and when the time 
came and Congress refused to declare war, the refusal would 
simply be a breach of the treaty. 

Almost every treaty commits the country to action or in- 
action in the future. In a treaty we may say, as we often have, 
that the nationals of a certain country shall have the right to 


*This phrase was written before the Imperial Conference of 1926. 


AMERICAN SUGGESTIONS 25 


sue in our Courts; this is not a delegation of judicial power, for 
it simply means that the United States agrees that our Courts 
shall grant the privilege; and if any particular Court refused it 
in a given case that particular refusal would be a breach of the 
treaty. A treaty which requires legislation or other action by 
Congress to carry it out in a given case is not void. If it were, 
the Louisiana Purchase was void because it required an appropria- 
tion to carry it out; the Treaty of Peace with Spain was void 
because it required an appropriation of twenty millions to “pay 
for the Philippines” ;+ indeed, if a treaty containing an agree- 
ment for the future regarding a matter which, under our Consti- 
tution, is within the powers of Congress, is void, almost all of 
our treaties were void when they were made, because very gener- 
ally they have required Congressional action or at least inaction, 
the refraining by Congress from passing legislation that Con- 
gress might pass. It would be a strange doctrine that would 
make us think that the Panama Canal Treaty is a nullity because 
it requires a Congressional appropriation of $250,000 every year 
to carry it out, by way of payment to Panama. 

Views similar to those of Mr. Lansing were hinted at in the 
report of the American Delegates to the Second Hague Confer- 
ence of 1907; and they have been effectively answered by John 
Bassett Moore :3 


In reality, the suggested constitutional difficulty seems to lack 
substance. To say nothing of the fact that the regulation of 
methods of warfare would appear to be particularly within the 
treaty-making power, the principle of interpretation on which the 
doubt is suggested appears to be radically unsound and to belong 
in the category of notions which tend to bring constitutional law 
into disrepute. That the United States cannot internationally 
agree to forego the exercise of any power which the Constitution 
has conferred on Congress, or other department of government, 
is a supposition contradicted by every exercise of the treaty- 
making power since the government came into existence. When 
we reflect upon the number and extent of the powers conferred 
upon the national government, and upon their distribution and 
the methods prescribed for their exercise, it is obvious that the 
attempt to act upon such a supposition would exclude the United 
States from any part in the progress of the world through the 
amelioration of law and practice by international action. 

* The Treaty does not so apply the payment; but public opinion rightly did. 
*See The Hague Peace Conferences of 1899 and 1907, by J. B. Scott (1909), 


vol. ii, p. 223. 
* Principles of American Diplomacy, (1918), p. 65. 


26 THE DRAFTING OF THE COVENANT 


My views on this constitutional question were set forth in 
the following memorandum, written at the time: 


There is no express limitation in the constitution of the 
United States as to the subject matter to which treaties made on 
the behalf of the United States may relate, general power being 
granted in general language to make treaties. The subject matter 
of such treaties must be deemed to extend at Jeast to such instances 
as had been at the time of the adoption of the Constitution com- 
monly included as subjects of agreements between States. 

It is unnecessary to discuss the doctrine that the treaty making 
power of the United States is subject to the general limitations 
contained in the Constitution, and that a treaty conflicting with 
other provisions of the Constitution would be void, as that doctrine 
is believed to be correct by the undersigned, and will at least be 
accepted as correct for the purpose of this memorandum. It is 
true that there is no decided case holding void a treaty of the 
United States as contrary to the provisions of the Constitution, 
but it can hardly be doubted, for example, that a treaty which at- 
tempted to deprive a person of life, liberty or property without 
due process of law, would, like a statute to that effect, be invalid. 

Treaties which bind the United States to future action must 
like all executory instruments, contain either affirmative or nega- 
tive covenants. While it is immaterial from an international 
point of view what Department of Government may be charged in 
a particular case with the execution of a particular treaty, the 
subject is one highly important from a constitutional point of 
view. Obviously a negative covenant on the part of the United 
States is a covenant that no Department of the government shall 
perform the act covenanted against. On the other hand, a posi- 
tive covenant of the United States may be carried out, according 
to its system of laws, either by the executive, the judicial or the 
legislative branch of the government. In other words, the United 
States itself is charged with the fulfillment of the covenant, and 
by its constitution, one of its particular departments of government 
is charged with the fulfillment on behalf of the United States of 
the international obligation. 

Instances in treaties which bind the United States to do or 
refrain from doing an act of a legislative nature are very common. 
Under our Constitution, these acts of a legislative nature must be 
done or must be refrained from, as the case may be, by Con- 
gress. For example: Treaties requiring the payment of money by 
the United States have frequently been entered into. For the 
carrying out of these treaties in each case, an appropriation is 
necessary which requires an Act of Congress, in order that pay- 
ment may be made from the Treasury. In no instance has the 


AMERICAN SUGGESTIONS 27 


United States ever entered into such a treaty without such an 
Act of Congress being subsequently passed, but it is clear that 
Congress might if it saw fit refuse to make an appropriation and 
its refusal would be a breach of treaty by the United States. In- 
deed, it was such a refusal by the Chamber of Deputies of France 
which brought the United States and France to the verge of war 
in [respect of the Treaty of] 1831. 

Another very common instance in treaties is “the most favored 
nation” clause. This clause, so far as it relates to tariffs, imports 
a negative covenant on the part of the United States not to levy 
particular tariffs on goods coming from the other country with 
which the Treaty was made. Clearly this is a treaty which may 
be violated by an Act of Congress, precisely as the Chinese Ex- 
clusion Act violated the treaty with China, which contained a 
negative covenant. 

Congress has the power to declare war, but I submit that a 
treaty which binds the United States in certain contingencies to 
declare war or which binds the United States in certain contingen- 
cies not to declare war, is of the precise nature of the treaties 
previously mentioned. As to the latter point, the question is 
hardly open, for all of the Bryan Peace Treaties bind the United 
States not to declare war in certain cases, and it is obvious that 
the power of Congress to declare war in those cases and thus to 
breach the treaty still exists. The same is true of an agreement 
to declare war upon a condition subsequent; upon the happening 
of the condition, it would become the duty of Congress to declare 
war and thus fulfill the treaty obligation, but it would also be 
within the power of Congress to refuse to declare war and thus 
breach the treaty obligation. 

Can it be doubted that the United States has the power by 
treaty to enter into an alliance? At the time of the adoption of the 
Constitution, treaties of alliance were very common, and a treaty 
of alliance existed between the United States and France which 
had been ratified by Congress May 4, 1778, and which was abro- 
gated by Act of Congress July 7, 1798. That treaty contained the 
following language : 


If war should break out between France and Great Britain 
during the continuance of the present war between the United 
States and England, His Majesty and the said United States 
shall make it a common cause and aid each other mutually 
with their good offices, their counsels and their forces, accord- 
ing to the exigence of conjunctures, as becomes good and 
faithful allies. 


And also contained the following : 


28 


THE DRAFTING OF THE COVENANT 


Neither of the two parties shall conclude either truce or 
peace with Great Britain without the formal consent of the 
other first obtained; and they mutually engage not to lay down 
their arms until the independence of the United States shall 
have been formally or tacitly assured by the treaty or treaties 
that shall terminate the war. 


It was obviously to such treaties of alliance that Washington 
referred in his famous farewell address, in which he said: 


It is our true policy to steer clear of permanent alliances 
with any portion of the foreign world, so far, I mean, as we 
are now at liberty to do it; for let me not be understood as 
capable of patronizing infidelity to existing engagements. I 
hold the maxim no less applicable to public than to private 
affairs that honesty is always the best policy. I repeat, there- 
fore, let those engagements be observed in their genuine sense. 
But in my opinion it is unnecessary and would be unwise to 
extend them. 

Taking care always to keep ourselves by suitable estab- 
lishments on a respectable defensive posture, we may safely 
trust to temporary alliances for extraordinary emergencies. 


It is hardly necessary to point out that a treaty of alliance 
even though of a defensive nature is an engagement to go to war, 
upon a condition subsequent. It is true that the parties may 
differ in a given case as to whether the casus federis has or has 
not arisen, but if it admittedly has arisen, the obligation to declare 
war exists, an obligation which internationally binds the govern- 
ment which has entered into it,—an obligation which constitu- 
tionally binds that department of government which is charged 
with the duty or is granted the power of declaring war, an obliga- 
tion which constitutionally does not and cannot compel that de- 
partment of the government to make the declaration of war, but 
which internationally is broken by the government which made it, 
when the department of government having the power to declare 
war refuses to do so. 


Later portions of Mr. Lansing’s draft “International Agree- 


ment”’ are also to be mentioned. On January 7, 1919, Lansing 
handed to Wilson this draft in six Articles. Of these Articles, 
one and two were respectively the “Articles for Discussion” and 
the “Suggestions for an International Council for Discussion” 
above mentioned.1_ The remaining four of the six Articles were 


*D. 22 sq. 


AMERICAN SUGGESTIONS 29 


respectively entitled “Peaceful Settlements of International Dis- 
putes,” “Revision of Arbitral Tribunal and Codification of Inter- 
national Law,” “Publication of Treaties and Agreements” and 
“Equality of Commercial Privileges.” + 

One suggestion of Lansing in these later Articles should be 
specially noticed. In clause 1 of his Article V (Publication of 
Treaties and Agreements) he provided for the filing of copies 
of treaties with the Secretariat of the League of Nations. This 
was perhaps the first time that the idea of the registration of 
treaties, now embodied in Article 18 of the Covenant, had been 
brought forward.? 

At this time Lansing had written another paper, a summary 
of the arguments in favor of a negative covenant instead of the 
positive guarantees of Article 10. It may be that this memo- 
randum was handed by Lansing with his six Articles to Wilson 
on January 7. It was called ‘““Memorandum as to Form of In- 
ternational Agreement to Prevent Infringement upon Territorial 
and Political Rights” and read as follows: 


There are two forms of agreement which may be employed in 
effecting a union of the nations to prevent aggressions and inter- 
national wars. 

One is a joint guaranty of the parties to preserve the terri- 
torial integrity and political independence of every party to the 
agreement. 

The other is a covenant, several rather than joint in nature, 
not to violate the territorial integrity and political independence 
of any party to the agreement. 

The first form binds a party to do a certain thing; the second 
form binds a party not to do a certain thing. The first requires 
action if necessary; the second requires inaction. 

Under the positive guaranty the parties would be bound, under 
certain conditions, to employ coercion either of a martial or of 
a commercial character. 

Under the negative covenant the violation of its undertaking 
by one of the parties would be self-operative, constituting an un- 
friendly act against all other parties, since the offending party 
would assume a right relinquished by others. It could be pro- 
vided that the abrogation of treaties and the severance of diplo- 
matic and consular relations should follow as a matter of course, 


* For the text of these four Articles, see Lansing, op cit., p. 62 sqq. 

* Since this was written, I have seen a British Foreign Office Document of 
November, 1918, by Professor A. E. Zimmern, which contains a similar sug- 
gestion. 


30 THE DRAFTING OF THE COVENANT 


and the necessity of positive action for the restoration of rights 
violated left discretionary with the parties in council assembled. 

Opposition to the positive guaranty has appeared in various 
quarters at home and abroad. Governments in general appear 
loath to bind their countries to definite action which may necessi- 
tate the use of their armed forces or compel an interruption of 
their commerce and trade. Numerous objections have been raised, 
some valid, some invalid, and these objections are seized upon and 
used by those who disbelieve or are hostile to a League of Nations. 

In the United States the positive guaranty is also opposed for 
national reasons. Its opponents declare that the treaty-making 
power cannot take from Congress the war-making and commerce- 
regulating powers delegated to it by the Constitution; that to 
agree to joint coercion of an American republic would permit an 
interference with American affairs by European nations and de- 
stroy the Monroe Doctrine and Pan-Americanism; and that to 
bind the United States to unite in coercive measures would be 
violative of the traditional policy of the United States to abstain 
from “entangling alliances” with European governments. There 
can be little doubt but that these arguments have won many sup- 
porters in Congress and among the people at large. 

The negative covenant, which would seem to be effective in 
reaching the end sought, has internationally the advantage that 
no power could give a satisfactory explanation of refusing to make 
it. It has also the same basis as the so-called “Peace Treaties” 
in its self-denying character, to which most nations are parties. 

From the purely American opposition it removes the argument 
of unconstitutionality, of infringement of the Monroe Doctrine and 
Pan-Americanism, and of any abandonment of abstention from 
foreign alliances. 


This paper seemed to me to be an excellent statement of the 
arguments against the positive guarantee of territorial integrity 
and political independence; and on January 6 I had told Mr. 
Lansing that my own views were in accord with what was said 
in it. My expressed reasons for favoring a negative covenant 
rather than a positive guarantee were that I advocated, as I then 
said, an explicit recognition of the Monroe Doctrine; and I was 
not in favor of having guarantees of Latin-America made by 
non-American Powers. 

This attitude of mine may perhaps seem inconsistent with 
the position which I took in support of Article 10 of the Cove- 
nant in the discussions which later raged about that Article in 
the United States; so perhaps I should say something as to my 
views, though, as I think, they may be of little importance. 


AMERICAN SUGGESTIONS 31 


The bogey of inconsistency is nothing to me; and I never 
heard of anyone who was always right except the Sheriff of 
Nottingham ; and as the tale is told he found it very boresome. 

I did not agree with either Wilson or Lansing regarding the 
vital necessity of the inclusion or the exclusion of the guarantee 
which became Article 10. Wilson thought that its inclusion was 
vital, Lansing thought its exclusion was vital, and I thought they 
were both wrong. 

The idea of a League of Nations is an idea of universality 
and of peace. In 1919 it was a wholly untried idea. I believed 
in it, I thought it would work, but no one could then have been 
dogmatic as to its practicability, for it had never been tried. IJ 
did not see how any one could oppose the idea unless he said that 
he was omniscient and knew it could not work. If it might work, 


if it might end war, that ought to be enough for anyone; but I 


thought that the idea not only might, but would succeed. 

Now the idea of war and the idea of a League of Nations 
are antithetic ideas. To suppose the existence of a League of 
Nations and at the same time a war between its members is to 
suppose an unreal impossibility. Of course, I am speaking of 
serious things. Haiti and the Dominican Republic might, I sup- 
pose, go to war and a League go on. But a world war, a war of 
Great Powers and a League of Nations of these same Powers 
with the rest, are contradictory in their essence. 

So any League of Nations must include Article ro as a real- 
ity, whether or not it includes it in words. If you do not end 
aggressive war, there is no League of Nations. If there is a 
League of Nations, you end aggressive war. 

So any League meant Article 10, and the question as to the 
Covenant was whether you should write Article 10 or not. 

I would have left it out if I could, although I thought it 
mattered little in reality. 

My original suggestion in the Draft Agreement for an Asso- 
ciation of Nations which I submitted to Colonel House, was to 
have a positive guarantee and an unlimited right of withdrawal. 
The two thoughts are intimately connected. A guarantee that 
can end at any moment is not a very alarming form of obliga- 
tion; but it has a high moral value. 

The arguments of policy on both sides were strong. Senti- 


tment in the United States and Canada is and was in 1919 against 


a “commitment.” Now (not then) there is a good deal of that 
sentiment in Great Britain. The false and fantastic vision of 


32 THE DRAFTING OF THE COVENANT 


American (or Canadian or Brazilian) mothers praying for their 
sons in the Balkans was as real to many uninformed minds as a 
movie. On the other hand was the problem of the security of 
France and other countries. Even Article 10, with its very 
limited obligation (much more limited legally than generally 
supposed or stated) was certain to be regarded by the French as 
not enough. 

The whole question was one that has remained to trouble the 
world; like Wilson, I thought that with a League it would be 
answered. So I was in favor of the Covenant with Article 10, 
and in favor of the Covenant without Article 10. The League 
was to be the salvation of mankind, and no form of words, no 
absence of a phrase, would lessen my devotion to its ideal or my 
belief in its reality. 

Before coming to the important discussions which took place 
prior to the first meeting of the Commission on the League of 
Nations, I should first refer to still another American draft, one 
prepared by Dr. James Brown Scott and myself. The circum- 
stances which led up to it were these; at the direction of Mr. 
Lansing, Dr. Scott and I drafted during the last days of Decem- 
ber, 1918, what was called a Skeleton Draft Treaty. That paper, 
which was finished on December 31, was an elaborate enumera- 
tion of subjects which the Treaty of Peace might cover, under 
various heads and subheads, with some comments as to Signato- 
ries, etc. On January 3, 1919, Mr. Lansing directed the prepa- 
ration of a Draft Treaty along the lines of this Skeleton Draft. 
A beginning was made of this really monumental job; but for 
various reasons it was never completed.t_ However, the first part 
of this Draft Treaty as we had sketched it out, after a preamble 
and certain formal clauses, was an Agreement for a League of 
Nations and this part of the draft was finished on January 8 and 
submitted the next day. 

In lieu of printing this paper it will be sufficient to summarize 
some of its provisions. Somewhat elaborately, it incorporated 
the principles of the so-called Bryan Peace Treaties so as to make 
them of general application as a method of adjusting international 
disputes. There were provisions for annual meetings of the 
Powers generally and also for meetings of a smaller group of 
Powers, somewhat similar to the existing Assembly and Council, 
although in this draft the larger body was called the Council and 
the smaller one the Standing Committee. Lansing’s idea of a 


*See Lansing, op. cit., p. 106 sqq. 


AMERICAN SUGGESTIONS 33 


negative covenant regarding territorial integrity and_ political 
independence was included and also a Monroe Doctrine clause. 
There were clauses for the publicity of treaties similar to those 
which were in my earlier Declaration for Open Diplomacy and 
also a clause from my earlier draft that the Assembly should 
“from time to time consider and recommend to the respective 
Member Powers for approval, declarations of rules and princi- 
ples of the law of nations”; and there was a general and un- 
limited right of withdrawal. 

There was nothing specific in this draft regarding a Perma- 
nent Court of International Justice. This omission, however, is 
not significant, for in what I have above called the Skeleton 
Draft of Dr. Scott and myself there was a subsequent heading 
as follows: “Hague Conventions and other International Agree- 
ments: (1) Status; (2) Amendment.” It was naturally under 
this heading that we intended to consider the question of a Per- 
manent Court and we never came to it. 

To follow in the Treaty this draft Agreement for a League 
of Nations and really as a part of it, Dr. Scott and I, in collabora- 
tion with Professor A. A. Young, prepared a Declaration for 
Equality of Trade Conditions. The basis of this paper was the 
Draft Declaration on the subject which I had previously written 
and submitted to Colonel House,? but my draft was somewhat 
recast and expanded. I feel that this paper is of sufficient interest 
to be included in this collection. It will be found in Document 4. 
I do not comment on it further than to call attention to its mar- 
ginal notes. Also as part of that Document is the British Draft 
Convention on the same subject, which was not seen by me until 
January 24. The comment of Dr. Young on the British draft 
is appended to it. 


*See p. 19 sqq. 


\ 
\ 


J 


CHAPTER IM 
THE SMUTS PLAN 


THE proposals of General Smuts, which had such a profound 
influence on President Wilson, were contained in his well known 
paper dated December 16, 1918, called ““A Practical Suggestion.” 
The original form of the paper (Document 5) is now some- 
what inconvenient for comparative reference as the draft Articles 
are interlarded with the comment; this argument or comment of 
General Smuts, which surrounded his textual proposals, is writ- 
ten in a moving and appealing style; tending indeed to disarm 
criticism of the text of the Articles suggested. 

My own reaction at the time to the paper of General Smuts is 
to some extent indicated in a memorandum of “Summary Ob- 
servations” on the Smuts Plan, which was dated January 13, 
1919, and then delivered to the American Commissioners over 
the signatures of Dr. Scott and myself, as follows: 


This paper is drawn in very moving language and is very 
beautifully written. Its specific provisions are striking both in 
regard to what they contain and in regard to what they omit. A 
few of these points will be noticed: 

(a) Almost the whole discussion is of Europe (including 
Russia and Turkey). 

(b) Under the express provisions of (2) and (3) Italy 
would receive no addition to her territory whatsoever. (Pre- 
sumably the effect of the language used was not noticed.) 

(c) Under the provisions of (2) and (4) there would be 
intervention in Russia by all the world. 

(d) By the text of the argument, the German Colonies are 
to be disposed of “‘on the principles . . . laid down in the Fifth” 
of the Fourteen Points. The specific proposals contain no men- 
tion of them in connection with the League of Nations, Equality, 
or the Open Door. 

(e) A mandatory of the League, say Great Britain in Meso- 
potamia, could act as it pleased there, if two other Powers on 
the Council refused to disapprove, say for example Japan and 
Portugal. (12). 


34 


THE SMUTS PLAN 35 


(f£) The functions of the Council are described in language 
which is so broadly vague as to mean almost anything. (14a). 

(g) Under (15) to (17) conscription is abolished but there 
is no mention of naval armaments. 

(h) Under (17) if Chile has a munition factory so must 
Argentina and Peru or be defenseless. 

(i) There is no provision as to how it shall be determined 
whether a covenant under (18) is broken or not, in the event that 
one Power contends that it is broken and the other contends that 
it is not broken. 

(j) The provision (19) that the United States shall be ipso 
facto at war under certain conditions subsequent, is, in our opin- 
ion, one which would, under the United States Constitution, be 
void if contained in a treaty of the United States. 

(k) We have a similar opinion as to the provision in (19) 
to the effect that the size of the naval or military contribution to 
be made by the United States in an ipso facto war might be de- 
termined not only without the consent of Congress but even against 
the decision of the United States. 

(1) Words having a technical legal meaning are used with 
an apparent disregard of their precise effect, e.g., “jointly and 
severally” in (18). 

(A covenant by A and B by which they “bind themselves 
jointly and severally not to go to war’ would be broken by A, if 
B went to war with C.) 


The twenty-one Articles of Smuts may now be examined in 
the light of the Phillimore Plan which Smuts had before him, 
and alongside of the Covenant as it resulted. 

Smuts commenced with the thought that the primary and 
basic task of the Peace Conference was to set up a League of 
Nations. This first Article was one with the purpose of which 
Wilson was naturally wholly sympathetic and the decision that 
the Covenant should be an integral part of the Treaty of Peace 
became embodied in one of the earliest resolutions of the Con- 
ference.1 Following this thought came the proposals of Smuts 
about the Mandates system, contained in eight of the twenty-one 
Articles (2 to 9), to which nearly a third of his argument was 
devoted. I shall take up these proposals more in detail in con- 
nection with the Mandates system of the Covenant.? It is suff- 
cient to say here that Smuts did not envisage Mandates as apply- 
ing to the German colonies in the Pacific and in Africa at all; 


*See Chapter viut. 
? See Chapter 1x. 


36 THE DRAFTING OF THE COVENANT 


these were left outside of the idea of Mandates being, as Smuts 
said, “inhabited by barbarians.” Smuts gave some passing 
acclaim and support to the formula of “No Annexations”; but 
did not think that this formula applied to the German colonies. 
Of course, he said, they should be separated from Germany and, 
as they were to be outside the Mandates system, the obvious in- 
ference or conclusion was that German South-West Africa 
should become a part of General Smuts’ country and German 
New Guinea a part of Australia and so on. The legal ability and 
political ingenuity of Smuts were strikingly shown in this pro- 
gram put forward in advocacy of ‘““No Annexations.” 

~~ To the organization or constitution of the League, as Smuts 
called it, he devoted five Articles (10-14). There is no doubt 
that here the ideas of Smuts made a real advance toward the 
final solution. Every plan for a League of Nations necessarily 
envisaged a general conference of all the members of the League 
under one name or another, the Assembly as we now know it. 
The Phillimore Plan, the House Draft and Wilson’s American 
Draft all contained such provisions and indeed it would be diffi- 
cult to draw any scheme for a League of Nations without them. 
The idea of a smaller representative body to meet more fre- 
quently had been suggested in various quarters and was, so to 
speak, in the air. While not in the Phillimore Plan or in the 
House Draft or in the Wilson American Draft, it was suggested 
in the French Plan; it was embodied in the draft which I had 
submitted to Colonel House, where I called the smaller body the 
“Council” ; it was in the draft of Dr. Scott and myself where it 
was called a “Standing Committee’ of Seven Powers; and it was 
in Lansing’s Articles, where it was called a “Supervisory Com- 
mittee” of five. 

According to Smuts, the League was to consist of a General 
Conference and a Council, with Courts of Arbitration and Con- 
ciliation; the Council, being “the Executive Committee” of the 
League, was to be composed of representatives of the Great 
Powers “together with the representatives drawn in rotation 
from two panels of the Middle Powers and minor States re- 
spectively”; and group representation was also suggested as 
possible. This differed from the Cecil plan, which will be men- 
tioned later, in that Lord Robert Cecil! thought the Council 
should be composed of the Great Powers only; and it differs from 
the plan of the Covenant, in that the Covenant, in giving the 


*Now Viscount Cecil of Chelwood. 


THE SMUTS PLAN 37 


Great Powers membership in the Council, puts together all the 
other Powers as one class from which the remaining Council 
members are chosen.* 

Among the functions of the Council, aside from control of 
matters relating to Mandates and administration of property of 
an international character, Smuts put these: 


To formulate for the approval of the Governments general 
measures of international law, or arrangements for limitation of 
armaments or promotion of world peace. 


Into the question of disarmament Smuts went in some detail 
(Articles 15-17). Here his solution was not entirely a happy 
one, perhaps because he very acutely observed the enormous diffi- 
culties of the problem; indeed in his argument he suggested 
questions which in 1926 were to trouble the technical sub-com- 
mittees of the Preparatory Commission of the League of Na- 
tions on Disarmament. So in his three Articles Smuts pro- 
posed two impracticable and insufficient measures, namely, the 
abolition of conscription and the nationalization of munition 
factories; he confessed failure as to any general limitation of 
armament, saying (Article 16): “The limitation of armaments 
in the general sense is impracticable.” With these measures he 
advocated that the Council should fix the members of the re- 
spective militia or volunteer forces of the members of the League 
and should conduct an international inspection of the national- 
ized munition factories. 

The remaining Articles of Smuts’ plan (18 to 21) regarding 
the settlement of international disputes were taken almost bodily 
from the Phillimore Plan, substituting the Council of the League, 
the smaller body, for the General Conference or Assembly as a 
tribunal of enquiry and recommendation. There is hardly a 
phrase in these four Articles of Smuts that is not in the draft of 
the Phillimore Committee; thus Article 18 of Smuts is almost 
exactly Article 1 of the Phillimore Plan; Article 19 of Smuts is 
substantially Article 2 of the Phillimore Plan; Article 20 of 
Smuts is almost literally Article 3 of the Phillimore Plan; and 
Article 21 of Smuts is a combination and rewriting of Articles 4, 
6, 8, 9, 10, and 11 of Phillimore; and, as I have pointed out pre- 
viously, these provisions of the Phillimore Plan and the four 


* With the present enlarged Council of fourteen Powers, there is in effect 
some modification of this principle. 


38 THE DRAFTING OF THE COVENANT 


Articles of the Smuts plan which followed them are very largely 
incorporated in Articles 12, 13, 15 and 16 of the Covenant. 

I first saw General Smuts’ paper on January 1, 1919, and 
with it there was handed me the first draft! of Lord Robert 
Cecil’s proposals. A later draft of this paper is Document 6, 
where the changes from the earlier draft are shown.? 

This preliminary memorandum of Cecil was in the form of 
an outline description of the League. It contemplated a quad- 
rennial meeting of the General Conference (Assembly), an 
annual meeting of the Great Powers (Council), with special 
conferences when necessary. The importance of the work of 
the Secretariat in connection with international administrative 
bodies and international commissions was to some extent fore- 
seen. The possibility of a Permanent Court was in the mind of 
the author and it was thought that the Interparliamentary Union 
might develop into a periodical congress of delegates of Parlia- 
ments which “would thus cover the ground that is at present 
occupied by the periodical Hague Conference’; and the provi- 
sions for the settlement of international disputes were in sub- 
stance those of the Phillimore Plan. 

The memorandum definitely suggested Geneva as the Seat of 
the League, the first time that this suggestion appeared at the 
Paris Conference. In the later draft? of this paper of Cecil, the 
phrase suggesting Geneva was omitted; but there is no doubt that 
the British were sympathetic with the idea of Geneva from the 
beginning. 

One important difference between the plan of Smuts and the 
memorandum of Cecil was in the composition of the Council. 
Cecil would have limited this to the Great Powers, while Smuts 
had proposed a minority of other Powers one less in number than 
the Great Powers. 

A large part of the Smuts plan was devoted to his ideas of 
Mandates; in the Cecil memorandum there was no mention of 
Mandates directly, although an African Commission was spoken 
of, implying perhaps some international supervision over the 
German colonies in Africa, which were outside of the Mandates 
in the Smuts plan. 

The views of General Smuts were expressed as coming from 
him alone. The proposals of Lord Robert Cecil were also per- 


*This draft had been circulated to the War Cabinet on December 17, 1918. 
? The later draft is headed “Draft Sketch of a League of Nations.” 
* Document 6. 


THE SMUTS PLAN 39 


sonal ina sense. The ideas of the one were not wholly in accord 
with those of the other. Each of the papers was of very high 
importance as their respective authors were not only members 
of the British delegation and statesmen of high rank, but were 
also to become the British representatives on the League of Na- 
tions Commission of the Conference. But neither one of them, 
not even the Cecil memorandum, was strictly an official pro- 
posal, put forward by the British Government. 


CHAPTER IV 
WILSON’S SECOND AND THIRD DRAFTS 


On January 10 the Second Draft of President Wilson (for 
the text see Document 7), his First Paris Draft, was completed. 
Lansing says * that this draft of Wilson was in typewritten form 
on that day before the American Commission. 

While this First Paris Draft of Wilson incorporated textu- 
ally much of his earlier American Draft (Document 3), there 
were some radical changes, taken largely from the Smuts plan. 
The theory of Smuts as to the Council was incorporated by 
Wilson in his Article 2 and Smuts’ proposal for the abolition of 
conscription was embodied in Article 4. Perhaps the most seri- 
ous changes from Wilson’s earlier Washington draft were in re- 
gard to the settlement of international disputes. Wilson had 
originally provided for obligatory arbitration generally, but in this 
Paris draft, while retaining some of his own procedural provi- 
sions, he took over into Articles 5 and 6 the four Articles of 
Smuts (18 to 21) providing for reference either to arbitration 
or to the Council, the recommendation of the latter body not to 
be of binding force, and also took over with these the sanction 
of an ipso facto war. As I have pointed out previously,? the 
substance of all these provisions appeared originally in the Philli- 
more Plan. 

Six Articles added by Wilson to the original favorite num- 
ber of thirteen were called “Supplementary Agreements”; the 
fifth was a clause for “fair hours and humane conditions of 
labor”; and the sixth provided for equality of treatment of 
“racial or national minorities,’ a forecast of the subsequent 
Minorities Treaties framed by the Committee on New States. 

The Mandates provisions of the Smuts plan were included 
by Wilson in his draft in the first four of these Supplementary 
Agreements; but Wilson made radical changes here; in general 
the language of Smuts was retained; but Wilson added a clause 
permitting the substitution of one Mandatory for another; and 
he made the Mandates applicable to “the colonies formerly under 
the dominion of the German Empire,” a doctrine which Smuts 

* Lansing, op. cit., p. 107. See also Baker, op. cit., vol. ii, p. 229. 

PP. 9, 37- 

40 


WILSON’S SECOND AND THIRD DRAFTS 4! 


had rejected; this was no new idea with Wilson; his views on 
the German colonies and on various other questions had been °* 
explained by him a month earlier, on December 10, 1918, while ° 
on his way to Paris. They are set forth in a statement given me 
by Dr. Isaiah Bowman ? as follows: 


After a few introductory remarks to the effect that he was 
glad to meet us, and that he welcomed the suggestion of a con- 
ference to give his views on the impending peace conference, the 
President remarked that we would be the only disinterested people | 
at the peace conference, and that the men whom we were about | 
to deal with did not represent their own people. 

He next mentioned the advisability of not leaving in purely 
political hands the question of the German indemnity, and went 
on to say that the matter should be studied by a commission to 
determine the just claims of the Allies against Germany, and 
that after such determination Germany should be made to pay. 
The President illustrated the difficulties of Allied action in 
imposing an indemnity by a reference to the Boxer question of a 
few years ago, and contrasted the attitude of the United States 
with that of Germany and the other European powers. 

As for the form of Poland’s government and questions like that 
of the disposition of Danzig, he would only say that he was in 
favor of their having any government they damned pleased, and 
that he was for imposing upon them no other provision than those 
which applied to individuals—the important thing is what a person 
ought to have, not what he wants.’ 

The President pointed out that this was the first conference in 
which decisions depended upon the opinion of mankind, not upon 


1QOn December 18, 1920. The words in italics are literally from the notes 
of Dr. Bowman which are mentioned in his letter to me of December 14, 1920, 
from which I extract the following: 

“On the way to Europe in December, 1918, President Wilson called in a 
dozen Inquiry people and told them his ideas on the Peace Conference and the 
League of Nations. I was the only one who took notes. These notes were 
sealed to be opened on Noy. 28, 1920. They are interesting. I know of no 
other statement which the President made, on the League of Nations, before 
the Peace Conference opened. His views therefore have historical importance 
and the notes are, historically, a document of considerable interest.” 

* This last phrase seems to be contradictory of the previous sentence. As 
to this, Dr. Bowman wrote me as follows, under date of December 2, 1924: 


“The President was making two points, first that he was in favor of 
letting them have a wide area of liberty in which to play with reference to 
their form of Government; second, that so far as their outside relations 
were concerned he also wished to meet them halfway, but in dealing with 
them he wanted to set up the principle that the nationalistic desires of a 
particular people could not be always or fully satisfied though he did feel 
that the Peace Conference could give each nation what it ought to have. 
In the form in which my memorandum casts his thought there is room for 
misinterpretation. I hope this explanation makes it clear.” 


42 THE DRAFTING OF THE COVENANT 


the previous determinations and diplomatic schemes of the assem- 
bled representatives. With great earnestness he re-emphasized the 
point that unless the conference was prepared to follow the opin- 
ions of mankind and to express the will of the people rather than 
that of their leaders at the conference, we should soon be involved 
in another breakup of the world, and when such a breakup came 
it would not be a war but a cataclysm. 

He spoke of the League to Enforce Peace, of the possibility 
of an international court with international police, etc., but added 
that such a plan could hardly be worked out in view of the fact 
that there was to be only one conference and it would be difficult 
to reach agreements respecting such matters; and he placed in 
opposition to this view of the work of the conference and of 
the project of a League of Nations, the idea of covenants, that is, 
agreements, pledges, etc., such as could be worked out in general 
form and agreed to and set in motion, and he particularly empha- 
sized the importance of relying on experience to guide subsequent 
action. 

As for the League of Nations, it implied political independence 
and territorial integrity plus later alteration of terms and alteration 
of boundaries if it could be shown that injustice had been done or 
that conditions had changed. And such alteration would be the 
easier to make in time as passion subsided and matters could be 
viewed in the light of justice rather than in the light of a peace 
conference at the close of a protracted war. He illustrated his 
point by the workings of the Monroe Doctrine, saying that what it 
had done for the western world the League of Nations would do 
for the rest of the world; and just as the Monroe Doctrine had 
developed in time to meet changing conditions, so would the 
League of Nations develop. In fact, he could not see how a 
treaty of peace could be drawn up or how both elasticity and secur- 
ity could be obtatned save under a League of Nations; the oppo- 
site of such a course was to maintain the idea of the Great Powers 
and of balance of power, and such an idea had always produced 
only “aggression and selfishness and war’ ; the people are heartily 
sick of such a course and want the peace conference and the 
powers to take an entirely new course of action. 

He then turned to some specific questions and mentioned the 
fact that England herself was against further extension of the 
British Empire. 

He thought that some capital, as The Hague or Berne, would 
be selected for the League of Nations, and that there would be 
organized in the place chosen a Council of the League whose 
members should be the best men that could be found. Whenever 
trouble arose it could be called to the attention of the Council 
and would be given thereby the widest publicity. In cases involv- 


WILSON’S SECOND AND THIRD DRAFTS 43 


ing discipline there was the alternative to war, namely, the boy- 
cott; trade, including postal and cable facilities, could be denied 
a state that had been guilty of wrongdoing. Under this plan no 
nation would be permitted to be an outlaw, free to work out its 
evil designs against a neighbor or the world. 

He thought that the German colonies should be declared the 


common property of the League of Nations and administered by | 


small nations. The resources of each colony should be avail- _ 


able to all members of the League, and in this and other matters 
involving international relations or German colonies or resources 
or territorial arrangements, the world would be intolerable if only 
arrangement ensues; that this is a peace conference in which ar- 
rangements cannot be made in the old style. Anticipating the 
difficulties of the conference in view of the suggestion he had 
made respecting the desire of the people of the world for a new 
order, he remarked, “Jf it won’t work, it must be made to work,” 
because the world was faced by a task of terrible proportions and 
only the adoption of a cleansing process would recreate or regener- 
ate the world. The poison of Bolshevism was accepted readily 
by the world because “it is a protest against the way in which the 
world has worked.” It was to be our business at the Peace Con- 
ference to fight for a new order, “agreeably if we can, disagreeably 
if necessary.” 

We must fell the United States the truth about diplomacy, the 
peace conference, the world. He here referred to the censorshsp, 
saying that he had arranged in the face of opposition from Europe 
for the free flow of news to the United States, though he doubted 
if there would be a similarly free flow to the peoples of other 
European countries ; after a considerable effort he had secured the 
removal of French and English restrictions on political news. 
Thereupon he finished his reference to the frank conditions under 
which the conference had to work and the necessity for getting 
the truth to the people by saying that if the conference did not 
Settle things on such a basis the peace treaty would not work, and 
“Gf it doesn’t work right the world will raise hell.” 

He stated that we should only go so far in backing the claims 
of a given power as justice required “and not an inch farther,” 
and referred to a remodeled quotation from Burke: “Only that 
government is free whose peoples regard themselves as free.” 

The European leaders reminded one of the episode in Philip- 
popolis—for the space of two hours they cried, “Great is Diana 
of the Ephesians’—to which the President appended in an aside, 
“an the interest of the silversmiths.” 

The President concluded the conference by saying that he 
hoped to see us frequently, and while he expected us to work 
through the Commissioners according to the organization plans 


44 THE DRAFTING OF THE COVENANT 


of the conference, he wanted us in case of emergency not to 
hesitate to bring directly to his attention any matter whose decision 
was in any way critical; and concluded with a sentence that de- 
serves immortality: “Tell me what's right and I'll fight for it; 
give me a guaranteed position.” 


The Second Draft of President Wilson, his First Paris Draft 
(see Document 7), was printed overnight and I received a copy 
of it on the morning of January IT. 

At that time, Colonel House instructed me to make comments 
on it for him. He also told me that I was to show the plan to 
no one, as the President had shown it to nobody except the mem- 
bers of the Commission. 

The result of these instructions of Colonel House was the 
preparation by me of an elaborate and detailed paper called 
“Comments and Suggestions Regarding the Covenant”; as 
originally printed the paper contained the text of the Covenant 
in a first column, the comments in a second and the suggestions 
in a third; and in this collection, in a changed form, it is Docu- 
ment 7. 

This paper was made public before the Senate Committee on 
Foreign Relations in September, 1919.1 

The witness ? who produced it, though knowing nothing of 
its preparation, asserted? that it was prepared by Mr. Gordon 
Auchincloss * and myself; this statement is followed by Lan- 
sing.® 

The fact is that the paper was wholly my own work, done 
without cooperation and, except as I shall mention, without the 
knowledge on the part of any person as to its contents. 

On January 11, I received my instructions from Colonel 
House for the preparation of these comments, as above men- 
tioned. My paper was completed and printed by the evening of 
January 18. Thus my comments were written during the seven 
days from January 12 to January 18, inclusive, and other than 
my secretary and the printers no one even saw the work during 
that period, much less had any part in it, except that at lunch 
with Mr. Auchincloss on January 16, I showed him what I had 
done up to that time. 


* Senate Document 106, 66th Congress, Ist Session, p. 1177 sqq. 
? William C. Bullitt. 

2 op. cit., pp. 1176, 1214. 

“Secretary to Colonel House during the Peace Conference. 
‘Lansing, op. cit., pp. 122, 124. 


WILSON’S SECOND AND THIRD DRAFTS 45 


Mr. Lansing is also mistaken in supposing 1 that my com- 
ments and suggestions may have “to an extent” originated with 
Colonel House. As a matter of fact, House never gave me the 
slightest indication of the nature of the comments and sugges- 
tions that he wanted. i 

Aside from matters of form and detail, my chief criticisms > 
were of the guarantees of Article 3 and its provisions for terri- 
torial changes and of the sanctions of Articles 6, 7, and 10. I 
suggested the addition of a Monroe Doctrine clause and a para- 
graph for legislation in international law ad referendum, and, 
following my earlier drafts, some paragraphs for publicity of 
treaties. I also appended as a suggestion the draft for Equality 
of Trade Conditions which is part of Document 4. : 

The omission of any Monroe Doctrine clause in this draft 
of Wilson was the point where I felt most strongly that it was 
objectionable; so, while I had written clauses which were designed 
to meet this and my other criticisms, I also wrote another paper 
stating in general language my chief objections to the draft and 
emphasizing particularly the matter of the Monroe Doctrine. 
This paper, which follows, was not printed with my Comments 
and Suggestions in Document 7, but it was submitted con- 
currently : 


By way of introduction to this comment it is not irrelevant, in 
view of the source of the paper upon which comment is made, to 
state briefly the attitude and viewpoint of the commentator. 

The viewpoint is that of an American, of a Democrat who has 
sympathetically supported the President in every negative or 
positive attitude he has taken from the day of his first nomination, 
and of a lawyer. 

The attitude from which the paper is approached is this: the 
program of the President should be carried out, a just peace 
should be made, and the foundations for a just peace in the future, 
in which America should take her part, should be built now. Not 
one part of the President’s program should be abandoned. The 
fact should be recognized, as the program recognizes it, that 
America has departed from her traditional policy of the past, 
that she is now a part of the future of the world, and that here- 
after she must be willing to throw her influence, and even, if need 
be, her force, in favor of peace founded upon justice, as in this 
war she threw both her influence and her force in favor of justice 
after peace had gone from the world. 

But more than this America should not do, for it is not only 


*Lansing, op. cit., p. 122. 


46 


THE DRAFTING OF THE COVENANT 


enough but it is all and more than all that she has promised. 
That in addition to this America should give up a policy which 
she has pursued for a century, and pursued faithfully when she 
was able, with some trifling exceptions—a policy which never had 
anything ignoble in its results, although it sometimes had some- 
thing of the baser metal in its motives—is not demanded, and if 
demanded or if granted would be a wrong to our country and to 
those countries to the south of us who now rely, because of 
President Wilson, on our attitude and on our ideals. 

America came into this war with altruistic motives and with 
a thrill of idealism through a hundred millions of people. It was 
our coming into the war that decided its issue, and it was our 
troops which would have made a complete military victory if the 
collapse of the enemy had not rendered it impossible. Our opera- 
tion in the Argonne was the largest military operation in the war 
and had more fighting troops engaged in it than all the British 
fighting troops in France, and as many as all the fighting French 
troops in France. We have financed and fed the Allies, and we 
shall have to continue to finance and to feed Europe. Surely, 
all this is enough; surely, we should not have to throw into the 
balance a doctrine which has permitted Latin America to develop 
its own civilization and its own ideals, for even if we criticize 
the development as slow and the ideals as faulty, we must admit 
that both the development and the ideals have been those of Latin 
Americans themselves; and that because of us and because of 
us alone the country from the Rio Grande to the Straits of Magel- 
lan has not been like Africa, a pawn in the diplomacy of Europe. 

And nothing need be surrendered to carry through the program 
of the President. Europe is bankrupt financially and its govern- 
ments are bankrupt morally. The mere hint of the withdrawal 
by America by reason of opposition to her wishes for justice, for 
fairness, and for peace would see the fall of every government 
in Europe without exception, and a revolution in every country 
of Europe with one possible exception. 

Because of these views the paper considered has been read 
with the deepest disappointment. The fact that it is largely 
drawn from British sources is no point against it, but rather the 
fact that it adopts, unconsciously no doubt, the British Empire 
point of view which looks for protection by the United States 
against the future without a thought of changing or improving 
the past. 

There is not a word in the paper regarding freedom of the seas. 

There is not a word in the paper about economic equality ex- 
cept regarding German Austria, Turkey, and the German Colonies. 

The dependent populations of the world whose sovereignty is 
in flux because of the war are to be handed over to mandatories 


WILSON’S SECOND AND THIRD DRAFTS 47 


of the League of Nations. Doubtless the United States will get 
such of those as Great Britain thinks too difficult for herself, and 
those will lie in the hands of the United States as a bulwark of 
the British Empire; such as Armenia. The rest will go to Great 
Britain, to France, and to Japan who, with theoretical responsibili- 
ties to the League of Nations, have among them an absolute veto 
on every act of the Executive Council. 

And yet, in the paper, the control of these countries by these 
three Powers, which as such three Powers have an absolute veto 
over criticism of their acts, is spoken of as not annexation. 

The Monroe Doctrine is abandoned under the provisions of 
the paper. The differences between the United States and Mexico 
would have been submitted for mediatory action or recommenda- 
tion to Great Britain, France, Italy, Japan, perhaps Germany, and 
either four or five other Powers the majority of which would 
probably have been European. And under this paper what might 
be the result and the consequences of the pending dispute regard- 
ing Tacna-Arica? 

There is not a word in the paper which would prevent an 
economic boycott of Germany by other European Powers. 

The pious hope regarding hours and conditions of labor would 
be a cruel disillusionment to the masses who have supported and 
are supporting President Wilson in Italy, in France, and in Great 
Britain. 

Stronger provisions for the protection of minorities were 
found in the Treaty of Berlin than are contained in the last para- 
graph of the paper; and the massacres and cruelties of the genera- 
tion following 1878, in Macedonia and other parts of the Turkish 
Empire are a witness to their efficacy. 

With the abolition of conscription the British fleet would be 
supreme in Europe and, aside from war with the United States, 
supreme the world over, not only actually but legally, for France 
must be Great Britain’s ally, nolens volens, and one other vote, 
Japan or Portugal or any other Power on the Council, blocks any 
action of the world. 

With the spirit of the provisions for the arbitration or investi- 
gation of disputes between States there can be no quarrel. That 
any such investigation should be made by a political body such as 
the Executive Council, with the necessary care and preparation, is 
almost unthinkable. The United States has gone much farther 
than any other Power in making treaties with other Powers pro- 
viding for such investigations, and its twenty treaties on the sub- 
ject would necessarily be abandoned. 

One other point regarding the paper will be noticed generally 
but not in detail. Any treaty, and above all, such a treaty as that 
constituting a League of Nations, is a legal document of the 


\ 
48 THE DRAFTING OF THE COVENANT 


highest importance. The avoidance of all technical terms in such 
a paper is probably impossible. In any event it should be drawn 
with the thought that every word in it has a meaning, and that 
every phrase in it to which two meanings may be attributed is 
inevitably a subject of dispute in the future. It should further 
be remembered that in the future it will be examined by the most 
critical and acute minds endeavoring to make the worse the better 
cause. The paper in question is a combination of writings not by 
the same author. From this doubtless result some of the omis- 
sions to which attention might be called. Aside from this, how- 
ever, various of the most important provisions are vague to the 
point of uncertainty, and certain provisions would, in a treaty 
of the United States, be void under its Constitution. 


14 January, I919. 


Undoubtedly President Wilson had many suggestions, Ameri- 
can and others, before him at this time. I have referred to 
Lansing’s and my own. Those of General Bliss under date of 
January 14 (Document 8), were of some importance; they un- 
doubtedly resulted in certain of the changes which the President 
made in his next draft 1 (Document g) ; for example, the omis- 
sion of the words “orderly government” in the Preamble; the 
addition of the words “as against external aggression” in the 
guarantee clause of Article 3 and the added paragraph to Article 
5 fixing the time limit of a year for an arbitral award or a deci- 
sion by the Council upon a matter in dispute, came directly from 
the suggestions of Bliss; and it is probable also that the change 
in Article 4, substituting the Council for the Assembly as the 
body to prepare disarmament plans, had its origin in the com- 
ments of Bliss in this matter. 

One notable change was made by Wilson in a few words of 
Article 6 regarding sanctions. In his First Paris Draft, follow- 
ing Phillimore and Smuts, the opening phrase read: y 


Should any Contracting Power break or disregard its cove- 
nants . . . it shall thereby ipso facto become at war with all the 
members of the League... . A 


There is no doubt that such a provision, so far as the United 
States is concerned, is unconstitutional. I had written in re- 
gard to it in my comments as follows: 

1Wilson’s Third Draft, his Second Paris Draft. To show the style of the 


Paris print, Document 9 is in 8 pt. type and reproduces the text page for page 
and line for line. 


WILSON’S SECOND AND THIRD DRAFTS 49 


A substantial objection to such a provision is that it would 
be void if contained in a treaty of the United States, as Congress 
under the Constitution has the power to declare war. A war 
automatically arising upon a condition subsequent, pursuant to a 
treaty provision, is not a war declared by Congress. 

It is not doubted that by treaty the United States could agree 
to declare war under certain circumstances. If the circumstances 
arose the failure of Congress to declare war would be a breach 
of the treaty; provisions of such nature are frequently found in 
treaties of alliance, which are within the treaty-making clause of 
the Constitution. 


As I have shown above, Lansing’s views went even farther 
than mine; he would have agreed with the first paragraph above 
quoted from my comment, but not with the second paragraph. 
General Bliss had called attention in his suggestions regarding 
this Article to the “powers which are vested in the American 
Congress.” Now because of some, perhaps all, of these views, 
Wilson made a slight change in the language in his Second Paris 
Draft, making a very great change in meaning: 


Should any Contracting Power break or disregard its covenant 
. it shall thereby ipso facto be deemed to have committed an 
A act of war against all the members of the League... . 


The economic boycott was retained and perhaps some corre- 
sponding changes should have been made in Articles 7 and 10 of 
this Wilson draft (Document 9) ; but the principle that we could 
not and would not agree to a provision for a war ipso facto upon 
a condition subsequent was accepted. 

Baker? says that either Lansing’s suggestions or mine 
brought about two of the additions in Wilson’s new draft, 
namely, the Article against secret treaties (supplementary agree- 
ment IX) and the Article against economic discrimination 
(supplementary agreement X). However, Bliss also had sug- 
gested a declaration against secret treaties. It is noteworthy 
that nothing on these subjects is to be found in Wilson’s earlier 
drafts despite his pronouncements for Open Diplomacy and for 
Economic Equality. 

In the new draft (Document 9) the third Supplementary 
Agreement, one of the Mandates Articles, was expanded; the 


. 24 sq. i 
2 op. cit., vol. i, p. 230 sq. 


50 THE DRAFTING OF THE COVENANT 


League was given power to terminate a Mandate; and a provi- 
sion regarding the expenses of a Mandatory State was inserted 
seemingly because of the comments of General Bliss. Indeed 
Bliss here anticipated one of the later objections, that it should 
be specifically stated that no State “can be made a Mandatory 
without its own cordial consent; a clause to meet this came 
into the Covenant later, but not, now; and while in the earlier 
draft the fourth Sunplenicacany Agreement related only to terri- 
tories formerly belonging to Austria-Hungary and Turkey, the 
language was now made general in its application, in accordance 
with both the suggestion of Bliss and my own criticism. 

Other changes made in the text were slight or verbal, but 
there were various additions; the four Supplementary Agree- 
ments numbered VII to X were new. Two of these I have no- 
ticed; the others were a clause against religious discrimination, 
Supplementary Agreement VII, followed by an Article bearing on 
the Freedom of the Seas, that mysterious slogan that may mean 
anything but more probably and usually nothing at all. The third 
of the Fourteen Points had related to this matter; but in the pre- 
Armistice correspondence it had been expressly excepted from 
the basis of the negotiations. The clause which Wilson now in- 
serted in his draft contemplated a future international Conven- 
tion defining the rights of belligerents on the High Seas. Per- 
haps the inclusion of some such proposal was suggested by Lan- 
sing’s clause (d) of the first of his six articles,! a clause which 
I had also incorporated in my suggestions (see Document 7). 

This Second Paris Draft of Wilson, his Third Draft (Docu- 
ment 9), was completed on January 20; at least I received printed 
copies of it on the morning of January 21. 

*See Lansing, op. cit., p. 54. 


CHAPTER V 
THE PROPOSALS OF CECIL 


In the meantime, some British papers had come in. On Janu- 
ary 18 there was received a printed “Draft Sketch of a League 
of Nations’ (Document 6) dated January 14, a revision of 
Cecil’s earlier paper.t The changes from the former text are 
noted in Document 6. The most interesting, perhaps, is the 
omission of any reference to Geneva as the Seat of the League. 
At the same time came a British draft resolution on the League 
of Nations for the Conference to pass at a Plenary Session; but 
I shall tell the story of that resolution in a separate Chapter.? 

On January 19 Cecil sent to the President a copy of his Draft 
Convention (see Document 10). I saw the paper that day and 
received a copy of it the next morning. This paper (subse- 
quently revised somewhat)? was one basis of the discussions 
which I had during the next few days with Cecil. 

The Cecil Draft Convention followed the lines of the “Draft 
Sketch” (Document 6) in regard to the organization of the 
League; the Council was to consist of the Great Powers with 
possible future additions; the General Conference was to meet 
at least once every four years; specific provision was made for 
separate representation of the British Dominions and India; 
much consideration was given to various phases of inter- 
national cooperation; and the draft covers a good many details 
regarding the Secretariat, etc., while leaving Mandates and va- 
rious other matters to separate Conventions. 

The basis for the provisions of the Cecil draft regarding the 
settlement of international disputes was the Phillimore Plan * 
which, as I have shown, had also been taken over in substance 
by Smuts in his draft ® and by Wilson in his latest draft. But 
while the Phillimore Plan was the basis of these clauses of the 

*See p. 38. 

? Chapter vumt. 

“For the revised draft see Document 10. The few differences from the 
earlier draft are there noted. 

*Document I. 


* Document 5. 
° Document 9. 


51 


. 


52 THE DRAFTING OF THE COVENANT 


Cecil draft the latter incorporated various ideas which were 
new. The most notable of these was that it contemplated the 
creation of a Permanent Court of International Justice; and it 
provided that a dispute not submitted to arbitration or judicial 
decision might be referred either to the Council or to the Assem- 
bly and that either Body might submit either the dispute or any 
particular question involved therein to the Permanent Court, 
whose decision would in such a case require confirmation by the 
referring Body; in other words, the draft contemplated advisory 
opinions of the Permanent Court in cases of dispute pending 
before the Council or the Assembly. 

The sanctions were generally those of the Phillimore Plan, 
ipso facto war, blockade, etc. ; indeed the Convention contained a 
very drastic provision that the operations undertaken in pursu- 
ance of it, naval, military and economic, “‘shall be carried on with- 
out regard to any limitations hitherto imposed on belligerent 
States by any convention or rule of international law.” 

Furthermore, it is highly important to observe that the draft 
jincluded, in different language, the Wilson guarantees of terri- 
‘torial integrity and somewhat similarly provided for their modifi- 
cation. The Wilson draft (Article 3) contemplated future terri- 
torial readjustments; the Cecil draft (Chapter I, clause 2) 
contemplated recommendation of changes by the League which 
if not accepted left the other Members of the League free from 
“the obligation to protect the territory in question from forcible 
aggression;” the wording of the two drafts (see Documents 9 
and 10) should be compared. 

My first discussion with Cecil was in the afternoon of Janu- 
ary 21 at the Hotel Majestic. The talk was very frank. It lasted 
an hour and a half and related to two papers, Cecil’s Draft Con- 
vention dated January 16 (see Document 10) and Wilson’s 
Second Paris Draft (Document 9), which had at this time been 
printed. I had on the morning of the same day received copies 
of it and Cecil had it also. On various points we exchanged 
personal views, which bound no one. I had no instructions at all. 

I made two criticisms of Cecil’s paper; the first was of the 
proposal permitting changes in boundaries (Chapter I, clause 2 
of Document 10). 

As to this I said it would simply tend to legalize agitation in 
Eastern Europe for a future war, and that instead of this prin- 
ciple the Swiss idea should be adopted—that the government 
should be accepted by the minority whatever its race was. Cecil 


THE PROPOSALS OF CECIL 53 


thought there was a good deal in this point of view, but said that 
treaties could not be made immutable and that that point should 
be recognized, and possibly a provision could be made for revi- 
sion generally, not specifically relating to boundaries, at intervals 
from time to time. I said that I thought we might agree along 
these lines. 

This stated objection of mine was of course even more ap- 
plicable to some of the language of Article 3 of Wilson’s draft. 
I never believed in providing in advance for some kind of a 
tribunal or body charged with the duty of considering changes in 
boundaries; my comment on the idea (see Document 7) was this: 


That the territorial adjustments made by the Peace Conference 
will not satisfy all claims, is the only thing now certain about 
them. Such general provisions as above mentioned will make 
that dissatisfaction permanent and will compel every Power to 
engage in propaganda and will legalize irredentist agitation in at 
least all of Eastern Europe. It is submitted that the contrary 
principle should prevail; as the drawing of boundaries according to 
racial or social conditions is in many cases an impossibility, pro- 
tection of the rights of minorities and acceptance of such protection 
by the minorities constitute the only basis of enduring peace. 


and my views on this point generally have recently been expressed 
at some length elsewhere.* 

My second criticism was of the 1pso facto war (Chapter II, 
clause 12 of Document 10). I said that a war must really be 
decided upon by the people that are going to fight it at the time, 
and that, treaty or no treaty, people would not be commited in 
advance, and that it was no use to try to commit them. Cecil 
spoke of the modification of this point that had been made by 
the President (in Article 6 of his Second Paris Draft), namely, 
that the act of the covenant-breaking Power should be deemed a 
hostile act,? and I said that I thought we could go as far as that. 

The two criticisms that Cecil made of the President’s paper 
were: first, as to the Council, which he said was Smuts’ plan, 
but he did not agree with it. He thought that the Great Powers 
must run the League and that it was just as well to recognize it 
flatly as not. 

The other point was on the representation of the Powers 
generally, and he said that Great Britain would have to ask for 


*In chapter vir of my book, The Geneva Protocol (1925). 
“See the discussion of this change, p. 48 sq. 


54 THE DRAFTING OF THE COVENANT 


representation for the Dominions and perhaps India, and that 
consequently a meeting of Ambassadors would not suffice. 

On the following day, January 22, Colonel House was in- 
formed of this talk with Cecil and on January 24 I received 
definite instructions. House told me that he wanted me to meet 
with Cecil and to go as far as possible in having an agreement with 
the British on the basis of the Covenant,’ supporting it and get- 
ting them to accept it where possible, aside from questions where 
there were legal objections. I spoke to him about Cecil having 
mentioned twice to: me that he had not submitted the plan to the 
Cabinet, and House said that he would take this matter up so 
that there would not be an agreement which would bind only us 
and not the British. He said that if we could get an agreement 
with the British we could get the Japanese and Italians to assent 
to it and then the French. 

On the morning of January 25 I spent two hours with Cecil 
at the Hotel Majestic. I told him I was there to see how far the 
President’s scheme could be accepted, as it stood, by the British, 
and to take note of such changes as they desired, explaining to 
him that my agreement as to changes was simply an agreement 
that I would recommend them, and that whether they would be 
accepted or not was another question. Cecil then took up vari- 
ous features of the changes which they desired. He spoke par- 
ticularly of the question of representation of the Dominions; of 
the changes in the composition of the Council so as to make it 
consist simply of the Great Powers; of the dignity which he 
wished to give to the office of Chancellor of the League; and of 
the difficulty of the question of disarmament. 

No one but Cecil and myself was present at this meeting. I 
took some notes regarding points mentioned in various Articles 
of the Wilson draft and Cecil gave me a list of subjects which 
were in his mind, which included a Permanent Court of Inter- 
national Justice. 

Copies of two British proposals were handed me. One of 
these was the League of Nations Draft Convention dated Janu- 
ary 20. This Draft Convention is, with a few changes and addi- 
tions, Cecil’s earlier draft dated January 16; in this collection it 
is Document 10 where the differences from the earlier draft 
are noted. The Notes which accompanied the Draft Conven- 
tion (and which follow its text in Document 10) show how 
much the British were thinking of matters of international co- 


*i.e. Document 9. 


THE PROPOSALS OF CECIL 55 


operation and the significance that they attached to the duties of 
the Secretary General (then called the “Chancellor” and of the 
Secretariat. The Notes also contain some discussion of the 
membership in the League of neutral and enemy Powers. The 
other proposal was a draft Convention regarding Mandatories 
with an annexed Note, to which I shall refer later.? 

Another paper then received contained the suggestions of 
Lord Eustace Percy. This was an attempt to remodel the British 
Draft ? by incorporating in it some of the provisions of the Second 
Paris Draft of Wilson. I do not reprint this paper in its original 
form as it refers to the two drafts by paragraphs and lines and 
would in part be impossible to follow; so I have, so far as pos- 
sible, drawn up its result, that is, amalgamated the two docu- 
ments as suggested by Percy, including therein his notes on cer- 
tain provisions, and print this as Document 11. 

I agreed to go over the various papers which I had received 
and to have a further conference with Cecil at which I hoped to 
give him my conclusions. 

It was on the afternoon of this day that the Plenary Session 
of the Peace Conference was held which passed the resolution 
regarding the League of Nations; but I shall tell the story of 
that resolution later on.* 

My next meeting with Cecil was on January 27, a meeting 
for which I had made considerable preparation. Not only had 
I gone over all the British papers, but I had drafted a paper of 
notes on each British suggestion and, finally, had redrafted the 
Covenant of Wilson, without changing its arrangement, by in- 
corporating in my redraft such of the British provisions as I was 
willing to accept. It is to be remembered that the two drafts at 
this time were Wilson’s Second Paris Draft (Document 9) and 
the British Draft Convention dated January 20 (Document 10). 

With these papers before us, Cecil and I at a meeting which 
lasted over four hours, came to a substantial agreement, except 
on certain questions which were reserved, these being particu- 
larly the paragraphs relating to the procedure for appeal from 
an arbitration, mandates, freedom of the seas and economic 
equality. . 

The agreement reached with Cecil, so far as it extended, was 
based upon, and to a large extent was literally in the terms of, 


*See p. 106 sqq. 
? Document Io. 
* See Chapter vu. 


56 THE DRAFTING OF THE COVENANT 


my redraft above mentioned; that redraft was in turn derived 
from the earlier papers, including Percy’s amalgamation (Docu- 
ment 11), the language of which to a considerable extent went 
into what may, for convenience, be called the Cecil-Miller Draft 
(Document 12). The natural result of these successive amalga- 
mations was, as Cecil wrote later,’ a highly artificial paper. This 
was partly due also to the desire to retain, for the time being, the 
arrangement of the Wilson draft, so that comparison would be 
the more easy. 

After my meeting with Cecil, he and I went over to see 
Colonel House and conferred with him; Sir William Wiseman 
was also there. The points upon which agreement had not been 
had were explained by Cecil to House. There was some dis- 
cussion of the question of Mandates, a matter which was being 
elsewhere considered at about this time, as will be seen;* House 
suggested that, after the British Government was committed to 
the plan, he (House) would take it up with Orlando and that 
Cecil might take it up with Bourgeois for the French. 

Further it was decided that there should be prepared copies 
of the draft as agreed on with a memorandum of the changes 
from President Wilson’s draft. This work was done that night. 
The paper which was prepared was entitled ‘Covenant Incorpor- 
ating Changes Agreed upon by Lord Robert Cecil and David 
Hunter Miller, 27 January, 1919” (Document 12). 

My report of the same date regarding the agreement reached, 
made to Colonel House, described it generally as follows: 


I have the honor to report that at the conference which I 
held today with Lord Robert Cecil pursuant to your instructions, 
tentative agreement was reached between us in respect of the 
changes proposed in the Covenant except in regard to those mat- 
ters which were mentioned to you by Lord Robert Cecil at the 
conference which you held with him and Sir William Vo and 
myself this afternoon. 

The changes proposed by Lord Robert Cecil were ebb 
numerous, and I trust that it will be found satisfactory that those 
which I found it necessary to accept are quite limited in number. 

It may be said, indeed, that those changes are chiefly con- 
nected with the first two articles of the paper. The British wish 
to make these changes with three ends in view: 


*See p. 61. 
* See Chapter 1x passim. 


THE PROPOSALS OF CECIL 57 


(a) The representation of the Dominions, which requires 
special representatives of the members of the League, the 
Dominions having no ambassadors or ministers. 

(b) The limitation of the membership of the Council to the 
Great Powers and those Powers, if any, which the Great 
Powers shall subsequently choose to add. 

(c) Increased importance of the office of Secretary of the 
League, who is called Chancellor. 


I thought it consistent with your instructions to accept these 
changes in order to reach agreement, as the two of them first 
named are regarded by the British as very important, and the third 
as highly desirable. 

While Article 111, which is highly important, has been recast, 
the spirit of the American Draft has, I think, been preserved. 

The change in the sixth paragraph of Article v is in substance 
only an elaboration of procedure. 

I think it may fairly be said that the other changes are either 
verbal or relatively unimportant, for example, Article vim was 
omitted because its provisions appear to be included in those of 
Articles vi and x. 

Submitted herewith are the following papers: 


(1) The American Draft which you handed to me. (Document 
9g, Wilson’s Second Paris Draft.) 

(2) The new Draft which incorporates the changes agreed 
upon. (Document 12.) 

(3) A memorandum stating the changes by paragraphs. 


The memorandum enclosed in my report to Colonel House 
was the following summary statement of the changes from the 
Wilson draft (Document 9) in what I have called the Cecil- 
Miller Draft. The numbering and arrangement of the Wilson 
draft had been preserved in the new paper so as to facilitate 
comparison between the two documents. 


PREAMBLE 


The words “jointly and severally” are omitted, as some of the 
agreements are several. This is the only change. 


ARTICLES I AND II 


These articles should really be considered together. While in- 
corporating various former provisions, they have been rewritten 
by the British. 

The changes are intended 


58 


THE DRAFTING OF THE COVENANT 


1. To provide for representatives, so as to permit the repre- 
sentation of the Dominions. 

2. To limit the Council to the representatives of the Great 
Powers. 

3. To dignify the office of the Secretary, called Chancellor. 


In addition, the provision which limited the action of the Body 
of Delegates to approval of recommendations of the Council is 
omitted, as the effect of any action of the Body of Delegates, not 
specifically authorized, is very carefully limited. 


ARTICLE II-A 


This Article is new. Its provisions are important but relate 
chiefly to matters of detail. 

The final paragraph of this Article, regarding representation of 
the Dominions, is tentative, so far as its language is concerned. 


ARTICLE II-B 


This Article is new but not important. 


ARTICLE III 


This Article has been recast, but incorporates generally, it is 
believed, the spirit of the former draft. 


ARTICLE IV 


Most of the changes are slight. 

In the first paragraph, a few words have been inserted and 
added. 

In the second paragraph, there is a verbal change. 

In the fourth paragraph, the words regarding private manu- 
facture of munitions have been omitted. 


ARTICLE V 


In the first paragraph the words “three months after the” are 
substituted for the words “there has been an.” 

In the second paragraph are inserted the words “which the 
parties to the dispute recognize to be.” 

In the third paragraph are inserted the words “pending the 
creation of a permanent court of international justice and in the 
absence of provisions in any agreement between the parties to the 
dispute prescribing the constitution of the court to which the dis- 
pute shall be submitted.” Also in the third paragraph the words 
“tie vote” are changed to “division” as there might be an uneven 
number of original arbitrators appointed. 

The fourth paragraph and the fifth paragraph are reserved 
as no agreement was reached regarding their provisions. 


THE PROPOSALS OF CECIL 59 


The sixth paragraph has been somewhat recast but contains 
the substance and to a large extent the language of the former 
draft. The real change is a provision to the effect that either one 
of the parties or the Council itself may refer the investigation to 
the Body of Delegates. 

In the seventh paragraph the period of twelve months is 
changed to six months. 


ARTICLE VI 


A few words have been deleted from the second paragraph. 
The present third paragraph is new. 


ARTICLE VII 


Former Article vit has been omitted entirely without sub- 
stitution in the present draft. It is believed that the effect of the 
provisions is accomplished by those of Article v1 and Article x. 


ARTICLE VIII 


The third and fourth paragraphs in the former draft have been 
omitted. 


ARTICLE IX 


In the first paragraph the following words have been deleted: 
“to judicial decision or” (occurring twice) ; and also “and to sub- 
mit its case to judicial decision or to arbitration’. 

The word “Delegates” in this paragraph has been changed to 
“Council”. 

A printer’s error in the last line of the first paragraph has 
been corrected by inserting the words “a party”. 


ARTICLE X 


The words “decision or” have been inserted in the fourth line 
of the former draft. 

In the eighth line of the former draft the words “that may be 
necessary” have been changed to “which may be agreed upon in 
accordance with Article vr’. 


ARTICLE XI 
In the second paragraph the word “cause” has been changed to 
“course”. 


ARTICLE XII 


The following words have been deleted : “whose government is 
based upon the principle of popular self-government”. 


60 THE DRAFTING OF THE COVENANT 


ARTICLE XIII 


This Article is unchanged. 


SUPPLEMENTARY AGREEMENTS I, II, AND III 


These three Articles are reserved. 

In lieu of these three articles, the British propose a draft con- 
vention regarding mandataries, which requires detailed exami- 
nation. 

Generally speaking, it may be said that this draft convention 
recognizes two classes of dependent peoples (a) Assisted States, 
and (b) Vested ‘Territories held upon trust. 

In respect of the “Vested Territories”, while adopting some 
of the principles laid down in Supplementary Articles 1, 1, and 
1, the British Convention gives less control to the League and 
more to the mandataries. 


IV 
This Article is unchanged. 
“ 
This Article has been slightly changed in language and 
expanded. 


VI 


This Article is reserved. 

The British suggest the omission for the present of this Article 
until the specific provisions to be contained in the territorial 
treaties can be considered. 


VII 
This Article is unchanged. 

VIII 
This Article is reserved. 

IX 


This Article has been somewhat recast. 


x 


This Article is reserved. 

In leu of this Article the British propose a draft convention 
regarding equality of trade conditions, together with a draft con- 
vention for freedom of transit and an annex to these conventions. 

Detailed analysis of these papers is required before they can 


THE PROPOSALS OF CECIL 61 


properly be compared with the principles of Supplementary Article 
x 


27 January, 1919. 


Particular attention should be given to the points which were 
“reserved” in the agreement between Cecil and myself. They 
included the provisions of Wilson’s draft (Document 9g) regard- 
ing an appeal from an arbitration? and thus directly concerned 
a clause for a Permanent Court of International Justice, which 
Cecil wished to substitute for the appeal paragraphs; the ques- 
tion of Mandates,? which was elsewhere decided; the question of 
Minorities,? which finally went to the Committee on New States; 
the question of the Freedom of the Seas;* and the question of 
Economic Equality.® 


After having received and examined this combination draft 
(Document 12), Cecil wrote me on January 29 as follows, call- 
ing the paper “your” (my) draft: 


I return your draft with a few red ink suggestions—mainly 
verbal. On re-reading it I am struck with the very artificial char- 
acter of its drafting—the result, in part, of successive amalga- 
mations. Before it can become an international document its form 
would naturally have to be entirely re-cast. In particular, I should 
wish to see it begin with a statement of the general purposes and 
functions of the League such as was contained in the British draft 
convention. Further, in some form or another we must deal with 
Transit, Trade Equality, Arms traffic, Mandatories, etc. Subject 
to these observations, I am in agreement with the substance of 
the draft and think it should form the basis of our discussion with 
our Allies. . . 

I have tried an appeal suggestion as you will see. 


The “red ink suggestions” mentioned in this letter were made 
on a copy of Document 12. They were in part suggestions of 
changes in the language and in part marginal notes. I have indi- 
cated them in Document 12. I need only mention here that one 
of them was to add Newfoundland to the list of Dominions with 
separate representation in the League. 


*The fourth and fifth paragraphs of Article v. 
* Supplementary Agreements 1 to I11. 

* Supplementary Agreement v1. 
‘Supplementary Agreement vu. 

° Supplementary Agreement x. 


62 THE DRAFTING OF THE COVENANT 


The “appeal suggestion” in lieu of the “reserved’’ fourth and 
fifth paragraphs of Article V of the Wilson draft (Document 
9), was for a Permanent Court of International Justice. The 
importance of Cecil’s suggestion in its relation to the clause of 
the Covenant which provides for the establishment of a Perma- 
nent Court will be apparent. Furthermore, the method proposed 
for the choice of the nine Judges of the Court, while not that 
finally adopted, may be said to have foreshadowed it to some 
extent as may be seen from this text of Cecil: 


The decision of the Tribunal of Arbitrators shall be finally 


binding and conclusive, unless within . . . months any of the par- 
ties to the dispute appeals to the Permanent Court of International 
Justice. 


The Permanent Court of International Justice shall have its 
seat at the Capital of the League, and shall be constituted in the 
following manner: 

Five persons of high judicial standing and known competency 
in international law shall be nominated by France, Great Britain, 
Italy, Japan, and the United States respectively. 

These five judges shall elect four other persons of high judicial 
standing and known competency in international law, from among 
persons nominated by the other states members of the League 
of Nations. 

These nine judges together shall constitute the Permanent 
Court of International Justice. They shall hold office for nine 
years, and may be re-appointed. 

In case of any vacancy occurring in the Court, the remaining 
members of the Court shall elect the judge who is to fill it, except 
in the case of a judge appointed by one of the Great Powers. In 
that case the said Great Power shall appoint the judge who is to fill 
the vacancy. 

No judge in the Permanent Court shall be removable except 
by the unanimous recommendation of all his colleagues. 

The Permanent Court shall be constituted in the above manner 
until such time as the States members of the League of Nations 
agree on some other method of appointing its members. 

In the event of an Appeal to the Permanent Court, the arbi- 
trators originally nominated by the parties to the dispute shall 
become ad hoc members of the Permanent Court. 

The decision of the Permanent Court shall be finally binding 
and conclusive without right of appeal. 

The decisions of the Permanent Court shall be binding pre- 
cedents both for itself and for any tribunal of arbitration set up 
under paragraph ii. 


THE PROPOSALS OF CECIL 63 


The following “Notes on a Permanent Court” which accom- 
panied the “appeal suggestion” of Cecil contained not only a 
very sound argument for the establishment of the Court. but 
foretold very accurately “the extremely important and valuable 
position which the Court would occupy if established’ and, even 
more clearly than the text of the proposal itself, they predicted 
that the difficulty of finding a method of choosing the Judges, 
hitherto insurmountable, would be overcome by the scheme of 
the League of Nations itself, the application of the doctrine of 
equality of rights of all States being necessarily based on reason 
and common sense in the one case as in the other : 


1. Besides serving as a Court of Appeal in major International 
disputes, a Permanent Court might fulfil the following functions: 


a. It might act as a Court of ist Instance in disputes aris- 
ing within the Administrative Unions: 

é.g. It would substitute the provisions for arbitration now 
contained in the Universal Postal Union, in the Inter- 
national Railway Convention, etc. 

b. It would serve as a Court of Appeal for the enforcement 
of the following Conventions: 
Arms Traffic. 
Equality of Trade Conditions. 
Transit. 
International Labour Legislation. 
Mandate Treaties (prohibited practices). 


The first 4 of these conventions are drafted on the assumption 
that there will be a Permanent Court. Out of all of them there 
are certain to arise a considerable number of disputes, some of 
which will involve large and important interests. 


c. It might act as a Court of Appeal for all the minor 
International Courts that will be set up: 
e.g. Danube Commission Court. 
Sanitary Convention—Consular. 
Commissions, etc. 
Possibly similar Courts may be set up for the Kiel Canal, 
the Vistula, etc. 

d. It might act as a Court of Summary Procedure, in 
minor or highly technical cases, or in claims for damages, 
which States do not wish to submit to the elaborate machinery of 
Article v. This might be of great practical use. 

It seems probable therefore that in normal times the Permanent 
Court would have work to do. And almost certainly there will be 


64 


THE DRAFTING OF THE COVENANT 


a great many cases arising out of the Peace Settlement for which 
an International Court will be required. This was the case after 
the Congress of Vienna; and if it so happened now, the Perman- 
ent Court might very quickly establish for itself an extremely 
important and valuable position. 

2. The difficulty in establishing a Permanent Court lies ex- 
clusively in the method of choosing its members. It is objected 
that it adds contentious matter to the general proposal for a 
League, and pro tanto will damage the League’s chances of coming 
into existence. 

This would be true if the small States maintained the attitude 
they adopted in 1907. They wrecked the plan for a Permanent 
Court then, but their ground of opposition was a plea of equality 
of rights which not only is theoretically preposterous, but which 
is entirely incompatible with the conception of a League of 
Nations. If they enter the League at all, they must and will aban- 
don the doctrines of Barbosa. There is therefore reason for think- 
ing that they might accept the scheme proposed as at least a 
temporary solution of the problem of constituting the Permanent 
Court. 

3. Prof. Pollard says that “it was the suppression of private 
war that fostered recourse to law.” 

In an exactly similar way, the proposals of the Draft Conven- 
tion for a League of Nations would foster recourse to international 
law. The moratorium, by forbidding war for a fixed period, 
would tend to produce this result; the provision compelling pub- 
licity as to the nature and grounds of all disputes would do so even 
more. States will not withdraw from arbitration issues which 
ought to go there, when they have the certainty of publicity before 
them. 

But the supremacy of the law in England was only rapidly 
established after the Wars of the Roses, because there were al- 
ready Courts of law in existence. At present there is no inter- 
national Court. Only if a true Permanent Court is established 
will recourse to international law under the League become the 
normal procedure of disputes. A permanent Court is the neces- 
sary basis of all legal development in international relations. 

4. The highest legal authorities believe that a Permanent 
Court is perfectly feasible, and that it would administer justice 
with complete impartiality. This is the opinion of Westlake, 
Pollock, Vinogradoff, Geldart, Oppenheim. If it proved to be 
right, it would remove the chief ground of objection to arbitra- 
tion in the past. 


CHAPTER VI 
THE HURST-MILLER DRAFT 


In the evening of January 31 I attended a conference with 
the President, General Smuts, Lord Robert Cecil and Colonel 
House, held in the Hotel de Crillon in one of Colonel House’s 
rooms. There was a very free discussion, chiefly between the 
President and Cecil, of the differences between Wilson’s Second 
Paris Draft (Document g) and the British Draft (Document 10). 

The President spoke in favor of having as the representatives 
in the Body of Delegates the Ambassadors ahd Ministers of the 
Contracting Powers. He said that he had always observed jeal- 
ousy and feeling about unimportant things when there were two 
representatives of the same country in one place. Cecil pointed 
out that the British Dominions would not have arian oe or 
Ministers. 

It was agreed that the provisions of the second ese of 
Article 4 of Wilson’s draft (Document 9) should be modified 
in accordance with the Italian view that they could not abolish 
conscription ; and that the language of Supplementary Agreement 
I would have to be changed in order to exclude territory ac- 
quired by Italy.? 

While I did not know it at the time, there had been a meeting 
on the previous day (January 30) between the President and 
Signor Orlando, at which these matters were mentioned. Colonel 
House and Signor Scialoja were also present. A note of that 
conversation follows: 


The President asked for Signor Orlando’s views on the cove- 
nant which had been submitted to him the day before. 

Signor Orlando replied that he was in the main in entire agree- 
ment with President Wilson, but he had a few technical sugges- 
tions to make. He drew especial attention to Article I of the 
supplementary agreements which, he thought, was open to miscon- 
struction. If the Trentino and Trieste were to be handed over to 
a mandatory by the League of Nations, it would seriously com- 
promise Italy’s dignity. 


*The language read “peoples and territories which formerly belonged to 
Austria Hungary” etc. See my comment as to this in Document 7. 


65 


66 


THE DRAFTING OF THE COVENANT 


The President pointed out that this was far from his mind. 
In fact, he intended that this question should be settled before 
the creation of the League of Nations. In other words, the Tren- 
tino and Trieste had, as far as he was concerned, already been 
ceded to Italy. He said that the reason why he had drafted the 
paragraph in this form, was because Yugo-Slavia might be divided 
into one, two or three States. He was prepared to admit two 
Yugo-Slav States to the League of Nations but, if it were found 
advisable to separate them into three parts, he would prefer to 
place the more unformed and less developed of the new States 
under the mandatory of the League of Nations. 

Signor Orlando thanked the President warmly for this expla- 
nation but he nevertheless recommended that the language of 
Article I be altered. 

This, the President promised to do. 

Signor Orlando drew attention to another reason for not post- 
poning too many of the settlements until the creation of the 
League of Nations. He said the Czecho-Slovaks and the Poles 
might decline to compose their differences in Silesia if hope were 
held out that the controversy could later be referred to the League 
of Nations. 

The President then explained why he proposed that the Gen- 
eral Court should be composed of the resident diplomats in one 
of the smaller capitals rather than of special delegates; if special 
delegates were appointed, there would surely be jealousy between 
them and the resident diplomats. In a small capital, a resident 
diplomat would have leisure to devote a portion of his time to the 
work of the League of Nations. This might not be the case in a 
large capital. 

Signor Orlando said that these remarks had convinced him 
absolutely. In fact, he added that the experience of the last few 
days had satisfied him that a large capital was not a good place in 
which to hold a Peace Conference. 

Signor Orlando did not find the idea of giving three votes the 
power of veto upon any action of the Council practical. To illus- 
trate his meaning he gave the case of an internationalized railway : 
supposing that a State, through which this railway passed, imposed 
exorbitant tariffs and refused to alter them at the request of its 
neighbours, all action could be paralyzed if three adverse votes pre- 
vented the Council from reaching a decision. 

The President admitted that this might take place but he 
said that, as there could be no resort to arms before a delay of one 
year, public opinion would have time to reflect upon the gravity of 
the step. 

Signor Orlando then hastily went over the remaining part 
of the covenant and said that his comments were very trifling, ex- 


THE HURST-MILLER DRAFT 67 


cept on the subject of the abolition of conscription. He thought 
that this would work hardship upon the poorer Powers. In other 
words, rich Powers could afford to pay their standing army well. 
This would place the poorer Powers at a disadvantage. He did 
not think the voluntary system would work in Italy. They were 
already having trouble with their paid carabinieri which demanded 
higher wages. He suggested that a minimum conscription be al- 
lowed to be modelled out after the Swiss system. He also thought 
that the presence of a large body of trained officers in a country 
might militate against the President’s system as, with trained offi- 
cers, it would be easy to drill new men rapidly. 

The President thought that if the number of officers were 

. limited to the number of troops they could legitimately be called 
upon to command, this objection would disappear. 

Signor Orlando asked what would be the result if all the 
Allied Powers abolished conscription and the German army re- 
mained intact. 

The President replied that Germany would be forced to disarm 
before she could be admitted as a member of the League. 

Signor Orlando promised to send an English translation of 
the Italian text to the President as soon as possible. 


Coming back to the January 31 conference, it was further 
agreed that the provisions regarding the method of arbitration ! 
and particularly the appeal provisions? in Article V of the 
Covenant were not essential, and that a general provision might 
be inserted for the creation of a Permanent Court. 

It was finally decided that I should meet Mr. Hurst,? the 
British legal adviser, the next day and should, so far as possible, 
agree with him on a draft, referring to House and Cecil, repre- 
senting respectively the American and British Governments, any 
questions which might be impossible of adjustment. 

My conferences with Hurst commenced the next day, Febru- 
ary 1, and I shall describe them in some detail, as they resulted 
in the draft which is generally known as the Hurst-Miller Draft, 
which was the basis of discussion before the Commission on the 
League of Nations. The text of the Hurst-Miller Draft is An- 
nex I of the English minutes of the First Meeting of the Com- 
mission on the League of Nations (see Document 19). 

I emphasize the fact that my instructions as to the work with 

*In the third paragraph of Article v. 

° These were the fourth and fifth paragraphs of Article v. They had 
been “reserved” in my agreement with Cecil, as shown above and by Docu- 


ment 12. 
* Now Sir Cecil Hurst. 


68 THE DRAFTING OF THE COVENANT 


Hurst not only came directly from Wilson, but were also quite 
different from those which I had received regarding my previ- 
ous meetings with Cecil. 

The essential bases of the Hurst-Miller Draft were these: 
first, the American and British drafts (Documents g and 10); 
then the text to which Cecil and I had agreed, subject to the ob- 
servations in his letter above quoted! (see Document 12) and 
finally, the understanding reached between Wilson and Cecil at 
the meeting on January 31, which I have just described. 

Hurst and I met in the afternoon at three o’clock (February 1) 
at his office in the Hotel Astoria and went on till half-past seven; 
we had first some general discussion regarding form and arrange- 
ment and the basis of our work together and we agreed that our 
draft should be put in one series of Articles. 

Hurst had previously prepared a revision of his own and, 
with Wilson’s Second Paris Draft and what,1 call the Cecil- 
Miller Draft before us, we went over the wording of each phrase 
of Hurst’s revision. I do not now have all of this; but those 
who wish to go into the details of verbiage may consult Docu- 
ment 13, which shows various Articles as Hurst wrote them. 

Part of what Hurst had written was accepted by me in haec 
verba, in part we made changes, and the rest was rewritten at our 
meetings. 

As we progressed we sent copy to the American Printing 
Office. The work of the printers was so rapid that we had about 
a dozen articles in proof by the time that we resumed at ten 
o'clock that evening at my office, 4 Place de la Concorde. 

We finished our draft some time after midnight and by four 
o’clock in the morning the entire proof was at hand. The whole 
proof was not finally corrected by us till some hours later after a 
little sleep and breakfast; but the draft was entirely printed by 
one o'clock in the afternoon of February 2, which was a Sunday. 

Here a comparison of what I have called the Cecil-Miller 
Draft (Document 12) and the Hurst-Miller Draft may be of 
value. 

In Hurst’s revision, the Preamble of the Cecil-Miller Draft 
was not changed; we inserted the words “by the acceptance of 
obligations not to resort to the use of armed force.” This was 
my suggestion, but it was really due to House, who always 
wanted some words against war in the Preamble of the Cove- 
nant. 


1p. 61. 


THE HURST-MILLER DRAFT 69 


Articles 1, 2, 2A, and 2B of the Cecil-Miller Draft related 
to the Assembly (then called Body of Delegates) and the Council 
(then called Executive Council) and the Secretariat of the 
League. These provisions, without any material change in 
meaning but with the elimination of much superfluous language, 
had been recast and rewritten by Hurst in five Articles. The 
result was a very great improvement in form; it made for sim- 
plicity, clear statement and brevity. With only trifling changes 
(none in Article 5), these five Articles as written by Hurst be- 
came Articles 1 to 5 of the Hurst-Miller Draft. 

Article 4 of the Cecil-Miller Draft related to disarmament. 
In accord with the understanding between Wilson and Cecil it 
was to be modified; and I accepted Hurst’s draft, which became 
Article 8 of our draft. 

The arbitration and appeal provisions of the Cecil-Miller 
Draft were Article 5 thereof. Its last paragraph, limiting the 
time for arbitral awards, etc., to six months, was dropped. Its 
third, fourth and fifth paragraphs relating to the procedure of 
arbitration and appeal, the two latter having been “reserved” by 
me with Cecil,’ went out, as Wilson and Cecil had agreed. In 
place of these came the provision for a Permanent Court of In- 
ternational Justice which I accepted as Hurst had written it, 
Article 12 of the Hurst-Miller Draft. The rest of Article 5 be- 
came, in substance and largely in language, Articles Io, 11 
(Hurst’s draft literally) and 13 of the Hurst-Miller Draft. 

The last paragraph of Article 6 of the Cecil-Miller Draft was 
left out in accord with the omission of the second paragraph of 
Supplementary Agreement IV, mentioned below. But most of 
that Article 6, the first three paragraphs, relating to sanctions, 
became, almost literally, Article 14 of the Hurst-Miller Draft, as 
drafted by Hurst. 

Article 8 of the Cecil-Miller Draft is almost literally Article 9 
of the Hurst-Miller Draft. 

Articles 9, 10, and 11 of the Cecil-Miller Draft, relating to 
disputes with or between non-Member States, became, some- 
what recast and condensed, Article 15 of the Hurst-Miller Draft. 

Article 12 of the Cecil-Miller Draft, condensed, became the 
first paragraph of Article 6 of the Hurst-Miller Draft. The 
second paragraph of that Article 6 is almost literally the first 
paragraph of Supplementary Agreement IV of the Cecil-Miller 
Draft. 


*For their text, see Document o. 


7O THE DRAFTING OF THE COVENANT 


Article 13 of the Cecil-Miller Draft became, as drafted by 
Hurst, almost literally Article 22 of the Hurst-Miller Draft. 

Supplementary Agreements I to III of the Cecil-Miller Draft 
(“‘reserved” in my agreement with Cecil) + and the second para- 
graph of Supplementary Agreement IV related to Colonies and 
to the territory of “New States.” Some modifications were re- 
quired, as agreed upon between Wilson and Cecil on January 31. 
But even before that meeting, the Council of Ten had passed, 
on January 30, a resolution regarding Mandatories which I dis- 
cuss later.?, This resolution was before us. Clearly all of its text, 
the first two paragraphs for example, could not go into the Cove- 
nant. Whether its provisions as to different forms of Mandates, 
etc., should properly appear in the Covenant or elsewhere in the 
Treaty or possibly even in separate Mandate Agreements was a 
question which had not then been thought out. The result in the 
Hurst-Miller Draft was a rather brief statement of general prin- 
ciples in Article 17. 

Supplementary Agreements V, VII, and IX of the Cecil- 
Miller Draft became literally or almost literally Articles 18, 19, 
and 21 of the Hurst-Miller Draft. 

Supplementary Agreements VI and VIII of the Cecil-Miller 
Draft relating respectively to minorities and Freedom of the 
Seas (‘“‘reserved” in my agreement with Cecil) 1 went out. 

Articles 16 and 20 of the Hurst-Miller Draft were proposed 
by me. The language is from the British Draft Covenant 
(Document 10). Article 20 was in place of Supplementary 
Article X, “reserved” in the Cecil-Miller Draft,’ relating to the 
same general question of Economic Equality. 

With one exception of the utmost consequence, the foregoing 
is a tracing, in perhaps tiresome detail, of the evolution of the 
Cecil-Miller Draft into the Hurst-Miller Draft. I have told how 
the Cecil-Miller Draft came to be made. My part in it was in 
accord with my instructions and there had been no dissent from 
my report on it. Changes of language and of arrangement in 
the new text were many. Changes of substance, thus far men- 
tioned, were those which Wilson had in advance conceded. 

The rest of the story is this: Article 3 of the Cecil-Miller 
Draft read as follows: 


The High Contracting Powers undertake to respect and pre- 
serve as against external aggression the territorial integrity and 


+See Document 9 for the text. Hs 
7In Chapter rx. The text of the resolution is at p. 109. 


THE HURST-MILLER DRAFT 71 


existing political independence of all States members of the 
League. 

If at any time it should appear that any feature of the settle- 
ment made by this Covenant and by the present treaties of peace 
no longer conforms to the requirements of the situation, the 
League shall take the matter under consideration and may recom- 
mend to the parties any modification which it may think necessary. 
If such recommendation is not accepted by the parties affected, the 
States, members of the League, shall cease to be under any obliga- 
tion in respect of the subject matter of such recommendation. 

In considering any such modification the League shall take 
into account changes in the present conditions and aspirations of 
peoples or present social and political relations, pursuant to the 
principle, which the High Contracting Powers accept without 
reservation, that Governments derive their just powers from the 
consent of the governed. 


Hurst proposed in his revision to retain the first of those 
three paragraphs and to omit the last two. I at once agreed; so 
that Article 7 of the Hurst-Miller Draft (later the first sentence 
of the famous Article 10) read simply: 


The High Contracting Parties undertake to respect and pre- 
serve as against external aggression the territorial integrity and 
existing political independence of all States members of the 
League. 


I have stated my ideas on the matter of the two omitted para- 
graphs as they were expressed to Cecil; and I refer again to the 
comment which I had written on this Article in Wilson’s First 
Paris Draft.1 My agreement to omit the two paragraphs was 
in line with my own views; it did not bind Mr. Wilson; and 
when the new text came before him, he was wholly free to reject 
it or to make it his own. So far as this Article is concerned, he 
accepted it. 


*See p. 52 sq. and Document 7. 


CHAPTER VII 
WILSON’S FOURTH DRAFT 


THE immediate sequel to the Hurst-Miller Draft was this; 
as I have mentioned, its printing was finished during the after- 
noon of Sunday, February 2, and almost at once some of the 
prints were delivered to President Wilson and to Colonel House. 

That evening at Colonel House’s rooms the President dis- 
cussed the draft with House and myself. I described generally 
how my agreement with Hurst had been reached. Mr. Wilson 
said that he did not like the Hurst-Miller Draft very much, that 
a great many things had been taken out, some of which he 
thought were important. He then took his Second Paris Draft 
(Document 9) as a basis and went over it, making certain 
changes and approving some others that had been made in the 
Hurst-Miller Draft. He asked me if it could be recast with 
those changes and printed and I replied that that could be done 
in time for the meeting of the Commission on the League of 
Nations the following day, February 3. 

This conference ended some time after ten o'clock and the 
new draft was printed that night. I received the final prints at 
the printing office at six a. M. Not more than fifty copies were 
struck off. This was President Wilson’s Fourth Draft or Third 
Paris Draft and it is Document 14. 

Examination of this draft shows that in many respects it is 
very similar to Wilson’s Second Paris Draft. In regard to the 
composition of the Council I had in my conference with Cecil 
yielded to his idea of a Council of the Great Powers and had 
made specific mention of this in my report. The text of both 
the Cecil-Miller Draft and the Hurst-Miller Draft was in ac- 
cord with this. The matter was not alluded to at the meeting of 
January 31. However, in this draft Wilson went back to the 
ideas of the Smuts plan for the Council contained in his previous 
draft. 

The arbitration and appeal provisions of Wilson’s earlier 
draft were in Article 5. Agreement on these points had not been 
reached between Cecil and myself, two paragraphs of the Article 


72 


WILSON’S FOURTH DRAFT 73 


having been “reserved.” The dropping of these provisions in 
the Hurst-Miller Draft and the insertion of a general clause for 
the formation of a Permanent Court were in accord with the 
understanding between Wilson and Cecil of January 31; but 
Wilson restored these provisions in his Third Paris Draft in 
very nearly the same form in which they had previously 
appeared. 

In regard to the Mandates clauses, Wilson took into account, 
as Hurst and I had, the resolution! of the Council of Ten of 
January 30. His idea was, however, that the text of this reso- 
lution should so far as possible appear in the Covenant text it- 
self. Accordingly, the first three Supplementary Agreements 
of his Third Paris Draft, while embodying some of the earlier 
language, were largely taken from the text of the resolution 
mentioned. 

In his Third Paris Draft, however, Wilson did accept the 
omission by Hurst and myself of those provisions of the Guaran- 
tee Article (later Article 10) which related to changes or modifi- 
cations of frontiers. In the three Wilson Paris drafts the Article 
is numbered 3, as it is in the Cecil-Miller Draft; in the Hurst- 
Miller Draft it became Article 7. 

As there is some confusion regarding the various Wilson 
drafts of the Covenant, a summary statement regarding all of 
them may well be made at this point. 

There were in all four Wilson drafts. The first of these, his 
Washington Draft, was perhaps never printed until it appeared 
in Baker’s work.” In this collection it is Document 3. 

Wilson’s Second Draft or First Paris Draft of January to, 
1919, has often been printed. In this collection it is in Docu- 
ment 7. 

Wilson’s Third Draft or Second Paris Draft of January 20, 
is Document 9g of this collection. This was a revision of his First 
Paris Draft and I have given a general account of the differences 
between the two in Chapter IV.% 

Wilson’s Fourth Draft or Third Paris Draft (Document 14) 
I have described above in this Chapter. It was printed on the 
morning of Monday, February 3, the day on which the Commis- 


*For the text of the resolution, see p. 109 sq. 

* op. cit., vol. iii, p. 88. 

* According to Baker, vol. i, p. 230, Wilson’s Second Paris Draft was “ap- 
parently not circulated, as it is little known.” I think, however, that Wilson’s 
Second Paris Draft was quite generally circulated at Paris; at any rate, as I 
have shown, it was the subject of most elaborate examination by the British 
and of much discussion between Cecil and myself. 


74 THE DRAFTING OF THE COVENANT 


sion of the League of Nations first met. It was this draft, Wil- 
son’s Fourth Draft, which he wished to “‘serve as the basis of the 
work” of the Commission. 

Now, Wilson’s Fourth Draft, which is Document 14, was 
transmitted to the Senate and printed in the Congressional Record 
of August II, 1919;? but with the enormous mass of papers that 
he had before him at that time, President Wilson does not seem to 
have been entirely clear as to his different drafts, for his letter of 
transmittal to Senator Lodge under date of August 8, which is 
also printed in the Record, read as follows: 


I have at last been able to go personally over the great mass 
of papers which remained in my hands at the close of my stay in 
Paris, and am disappointed to find that it is in no respect a com- 
plete file, the complete files remaining with the American Com- 
mission. 

You ask for all drafts or forms presented to or considered by 
the Peace Commissioners relating to the League of Nations, and 
particularly the draft or form prepared or presented by the Com- 
missioners of the United States. There are no formal drafts in 
my possession, except that presented by the American Commission- 
ers, and this I take pleasure in enclosing along with the formal 
Report of the Commission on the League of Nations. 

You also ask for all proceedings, arguments, and debates, in- 
cluding a transcript of the stenographic reports of the Peace 
Commission relating to or concerning a League of Nations or the 
League of Nations finally adopted, and all data bearing upon or 
used in connection with the Treaty of Peace with Germany now 
pending. No stenographic reports were taken of the debates on 
the League of Nations, and such memoranda as were taken it was 
agreed should be confidential. The reason for regarding as confi- 
dential intimate exchanges of opinion with regard to many deli- 
cate matters will, of course, occur to you, and I beg to say that 
I am following the example of the representatives of the other 
Governments in making this explanation. 

The various data bearing upon or used in connection with 
the Treaty of Peace with Germany are so miscellaneous and enor- 
mous in mass that it would be impossible for me to supply them 
without bringing from Paris the whole file of papers of the 


*I make this statement in view of Wilson’s letter to me of February 3, 
1919, quoted below. Baker, vol. iii, p. 117, in a head-note makes a some- 
what similar statement regarding Wilson’s Third Draft or Second Paris Draft, 
which is Document 9 of my collection, and Document 14 of Baker’s collection; 
but Baker does not print or even mention Wilson’s Fourth Draft or Third 
Paris Draft, which is Document 14 of my collection. 

“Vol. 58 Part 4, p. 3752. 


— 


WILSON’S FOURTH DRAFT 75 


Commission itself, and would include many memoranda which, 
it was agreed on grounds of public policy, it would be unwise to 
make use of outside the Conference. 


It will be observed that Wilson speaks of this draft as “that 
presented by the American Commissioners,” which it certainly 
was not. He doubtless had in mind one of his two earlier drafts, 
either the text in Document 7 or Document 9; the latter, I think. 

Thus, there was one Wilson draft in America and three Wil- 
son drafts in Paris; and the confusion as to these three Paris 
drafts inter se doubtless had its origin in the fact that, when 
printed at Paris, they were all in the same style of pamphlet and 
size of type and had no distinguishing marks; none of them was 
dated or numbered, so that the only way to distinguish one from 
the other was to compare the texts. 

When I sent to Wilson his copies of this last of his drafts 
(Document 14) on the morning of February 3, I wrote him as 
follows : 


I have the honor to transmit to you herewith ten texts of a 
draft of “Covenant”, printed this morning. About thirty other 
texts are available. 

In lieu of former Supplementary Articles 1, 11 and 11, there 
have been inserted, in accordance with my understanding of your 
direction, the substance of the provisions of the recent resolution 
regarding mandatories, adding, however, the first and last para- 
graphs of former Supplementary Article 111. 

The remaining changes from the former draft include only, I 
believe, those which were indicated by you, and a few others which 
followed from the changes so indicated, or which were made for 
conformity. 


This was his answer of the same date: 


Thank you for the copies of the revised “Covenant”. I am 
deeply indebted to you for a highly serviceable and extraordinarily 
prompt piece of work and I hope with all my heart that it will 
serve as the basis of the work of the Drafting Commission. 


Wilson’s hope was not realized; it was the Hurst-Miller 
Draft and not his revised Covenant which became the basis of 
the work to come. 


CHAPTER VIII 
THE COVENANT IN THE TREATY 


On January 25, 1919, a Plenary Session’ of the Conference 
of Paris passed the following League of Nations resolution: 


The Conference, having considered the proposals for the crea- 
tion of a League of Nations, resolves that 


1. It is essential to the maintenance of the world settlement, 
which the Associated Nations are now met to establish, that a 
League of Nations be created to promote international coopera- 
tion, to insure the fulfillment of accepted international obligations 
and to provide safeguards against war. 

2. This League should be created? as an integral part of the 
general Treaty of Peace, and should be open to every civilized 
nation which can be relied on to promote its objects. 

3. The members of the League should periodically meet in 
international conference, and should have a permanent organiza- 
tion and secretariat to carry on the business of the League in the 
intervals between the conferences. 

The Conference therefore appoints a Committee representative 
of the Associated Governments to work out the details of the 
constitution and functions of the League. 


This resolution had momentous consequences. Mr. Wilson’s 
determination that the Covenant should be a part of the Peace 
Treaty was unchangeable. This resolution made that policy of 
his the accepted policy of the Conference, destined, as the event 
showed, not to be altered; though there is no doubt that there was 
a good deal of important feeling on both sides of the Atlantic 
against making the Covenant a part of the Treaty. 

This resolution of the Peace Conference had as its basis a 
British draft, the date of which is said to be January 15. My 
copy has no date but I received it on January 18. Later on I shall 
refer to its text. 


*The speeches on the League of Nations made at this Plenary Session are 
printed as Document 15. 

* Curiously enough, this word is printed “treated” in the Protocol of the 
Plenary Session and in the minutes and in the Report of the Commission on 
the League of Nations. There is no doubt whatever that “created” is correct. 


76 


THE COVENANT IN THE TREATY 77 


There were other proposed drafts of a resolution regarding 
the League of Nations, none of which influenced the result. I 
prepared one of some length on January 19, from which Colonel 
House adopted (with some slight verbal changes) three para- 
graphs which he then sent to Wilson in this form: 


1. It is essential to the maintenance of the world peace which 
the Associated Nations are now met to establish, that a League of 
Nations be created at the conference with a permanent organiza- 
tion and regular meetings of the members. 

2. The League of Nations should promote the firm establish- 
ment of the understandings of international law as the actual rule 
of conduct among governments and the maintenance of justice 
and the scrupulous respect for all international obligations in deal- 
ings of organized peoples with one another. 

3. The Leagte of Nations should provide for open diplomacy 
by the prompt and complete publication of all International 
Agreements. 


Mr. Lansing wrote a draft, which he prints.1_ Lansing’s 
view was the opposite of that of Wilson. In his book, the for- 
mer Secretary of State says” that (apparently just at this time) 
he “began the preparation of a resolution to be laid before the 
Conference, which, if adopted, would appear in the preliminary 
treaty in the form of declarations which would constitute the 
bases of a future negotiation regarding a League of Nations.” 

In other words, Lansing wanted the Treaty to contain certain 
declarations of principle to form a basis of subsequent negotia- 
tions; Wilson wanted the Covenant in the Treaty. 

On January 20 Wilson told Lansing that he did not think 
that a resolution of the sort that Lansing had in mind “was 
either necessary or advisable.” 

We are further informed that at a meeting of the Council of 
Ten ? on January 21 Wilson asked Lansing to prepare a resolu- 


*Lansing, op. cit. p. 116 sq. 

op. cit. p. 113 and as to the following discussion generally p. 78 sqq. 

*The meetings of the representatives of the Great Powers during the 
Peace Conference of Paris were held in different forms. Sometimes the 
five Great Powers met as the Council of Ten, there being two representatives 
from each country; sometimes the five Foreign Ministers met and these 
meetings were usually referred to as the Council of Five. The meetings 
between the four heads of States, Mr. Wilson, Mr. Lloyd George, M. Clemen- 
ceau and Signor Orlando were referred to as the Council of Four; this was 
the case even during the period when Orlando was absent. — ( 

Now, all these meetings, the Council of Ten, the Council of Five, and the 
Council of Four were called meetings of the Supreme Council. Further- 
more, the Supreme Council is to be differentiated as a matter of form from 


78 THE DRAFTING OF THE COVENANT 


tion. Now some of the discussions at this meeting have already 
been published.1 It was there agreed that the question of the 
League of Nations should be taken up at the next meeting or, in 
other words, on the following day. 

On that day Lansing completed the draft of his resolution as 
follows : 


Resolved that the Conference makes the following declaration: 

That the preservation of international peace is the standing 
policy of civilization and to that end a league of nations should 
be organized to prevent international wars; 

That it is a fundamental principle of peace that all nations are 
equally entitled to the undisturbed possession of their respective 
territories, to the full exercise of their respective sovereignties, and 
to the use of the high seas as the common property of all peoples; 
and 

That it is the duty of all nations to engage by mutual 
covenants 

(1) To safeguard from invasion the sovereign rights of one 
another ; 

(2) To submit to arbitration all justiciable disputes which fail 
of settlement by diplomatic arrangement; 

(3) To submit to investigation by the league of nations all 
non-justiciable disputes which fail of settlement by diplomatic 
arrangement; and 

(4) To abide by the award of an arbitral tribunal and to re- 
spect a report of the league of nations after investigation; 

That the nations should agree upon 

(1) A plan for general reduction of armaments on land and 
sea ; 

(2) A plan for the restriction of enforced military service and 
the governmental regulation and control of the manufacture and 
sale of munitions of war; 

(3) Full publicity of all treaties and international agreements; 

(4) The equal application to all other nations of commercial 
and trade regulations and restrictions imposed by any nation; and 

(5) The proper regulation and control of new states pending 
complete independence and sovereignty. 

On the same day (January 22) that Lansing completed this 


the Supreme War Council, which consisted of representatives of the same four 
or five Great Powers and, while the Peace Conference was going on, of the 
same individuals usually. 

Beginning with July 7, 1919, after President Wilson had returned to the 
United States, the meetings came to be called meetings of the Heads of 


Delegations. Still later, these meetings of the Powers became known as the 
Conference of Ambassadors. 


*Baker, op. cit., vol. i, p. 237. 


THE COVENANT IN THE TREATY 79 


declaration of general principles, which it seems was not then 
submitted to any one, the Council of Ten met and passed the 
resolution in precisely the language above quoted.1 This appears 
from Baker,? although the circumstance is not mentioned by 
Lansing. Lansing does mention the same resolution as passed 
by the Plenary Session three days later and speaks of it as “the 
appointment of a Commission.”” But that resolution was much 
more than a decision for “the appointment of a Commission.” 
It stated some of the objects of the League, it mentioned some 
of the machinery of the League, it referred to the universality of 
the League, but also decided that the League should be an integral 
part of the Treaty and that a Committee should “work out the 
details” of its constitution and functions; while Lansing’s draft 
resolution on the other hand, was one merely for a general state- 
ment of principles. 

What had happened was that the Lansing idea of keeping the 
Covenant out of the Treaty had been rejected, first by Wilson on 
January 20 at the meeting of the American Commission, second 
by the Council of Ten on January 22 by the resolution which it 
adopted and third by the Plenary Session of the Conference on 
January 25 by the same resolution. The contrary course of put- 
ting the Covenant into the Treaty had been resolved upon. 

In the meantime the Lansing draft above quoted was pend- 
ing and unpresented. Obviously, as Lansing tells us, its form 
now required change, in view of the appointment of a Com- 
mission; but more than this, the substance required change if 
the resolution was to be presented. The draft contemplated a 
declaration of general principles and subsequent negotiations re- 
garding the details, whereas what had been decided was that a 
Commission of the Peace Conference itself was to consider those 
details and frame the text of the Covenant; so Lansing, as he 
tells us, changed his resolution, “after discussion with the other 
American commissioners” and apparently after January 25. He 
speaks of the alterations as “some changes of a more or less 
minor character which it seemed advisable to make because of 
the appointment of a Commission on the League of Nations at 
a plenary session of the Conference on January 25.” 

Not until January 31 did Lansing send his new text to the 
President, with a covering letter which is not available but which 
is summarized by Lansing as follows: 


1 


a op. cit. vol. i, p. 238. 


80 


THE DRAFTING OF THE COVENANT 


. Saying that in my opinion no plan could be prepared with 
sufficient care to warrant its submission to the Conference on the 
Preliminaries of Peace before he left Paris and that unless a 
plan was reported he would be in the position of returning empty- 
handed to the United States. I urged him in the circumstances to 
secure the adoption of a resolution by the delegates similar in 
nature, if not in language, to the draft which was enclosed, thereby 
avoiding a state of affairs which would be very disheartening to 
the advocates of a League of Nations and cause general discontent 
among all peoples who impatiently expected evidence that the 
restoration of peace was not far distant. 


Lansing does not print the text of the draft that he sent to 


Wilson on January 31. It was as follows:? 


dat 


The Conference, in order that the Committee appointed to 
work out the details of the constitution and functions of a League 
of Nations may be guided in the consideration and preparation of 
its report, makes the following declarations: 

That it is a fundamental principle of international peace that 
all nations are equal in the rights of undisturbed possession of 
their respective territories, of independent exercise of their re- 
spective sovereignties, and of free use of the high seas as the com- 
mon property of all peoples; 

That the members of the League of Nations should by mutual 
covenants undertake 


(1) To refrain from invading and to protect from invasion 
the sovereign rights and territories of one another; 

(2) To submit to international arbitration all disputes of a 
justiciable nature which have failed of diplomatic settle- 
ment; 

(3) To submit to investigation by the League of Nations all 
other disputes which have failed of diplomatic settlement ; 

(4) To refrain from hostile acts or the employment of force 
pending the arbitration or investigation of a dispute; 

(5) To abide in good faith by an arbitral award and to respect 
a report by the League of Nations upon a dispute sub- 
mitted to it for investigation ; 


That the League of Nations should have authority to appoint 
mandatories and to empower them to exercise, under such con- 
ditions as it may deem just, sovereign rights over the territories 
which were formerly the colonial possessions of Germany and also 
over such new states erected by the Treaty of Peace as are de- 


*I assume that the copy in my file of January 30 is correct. It bears that 
e and is headed, Redraft of Resolution of January 23, 1919. 


THE COVENANT IN THE TREATY 81 


clared to be international protectorates, it being understood that 
the interests and wishes of the inhabitants of the territories affected 
are primarily to be considered in the selection of mandatories and 
the provisions of the mandates issued, and that in the case of 
new states the mandates shall provide for the gradual assumption 
of complete independence ; 

That the League of Nations should be charged with the con- 
sideration and formulation of a plan for a general reduction of 
national armaments on land and sea and in the air, including 
therein restrictions upon compulsory military service and upon 
the manufacture and sale of arms and munitions of war. 


Lansing speaks of the differences between this draft and his 
earlier draft as being “of a more or less minor character.” As 
to this I point out that this draft provides for mutual covenants 
of the members of the League “to protect from invasion the 
sovereign rights and territories of one another,” a provision go- 
ing much farther than anything in Article 10 of the Covenant. 

Furthermore this later draft has in it a fairly elaborate para- 
graph regarding Mandates, not mentioned in his earlier draft at 
all, a system to which Lansing in his book devotes a chapter of 
criticism.? 

Indeed it would be a very simple matter to go through the 
Covenant as it stands and show that, aside from the question of 
the composition of the Council and the clauses regarding sanc- 
tions, most of its important provisions are stated in principle in 
this draft of Lansing which I have quoted.? Certainly this is 
true of Articles 8, 10, 12, 13, 15 and 22. 

The dates show that Lansing’s draft, submitted January 31, 
could not have had any influence as to the decision of January 22 
and January 25; its purpose, as its own words in terms stated, 
was for the work of the Commission itself; for the question of 
the Covenant had been removed from the consideration of the 
Council of Ten to the Commission on the League of Nations. 

It was the British draft resolution which Wilson changed 
and accepted; and that British draft was the same as the resolu- 
tion adopted and above quoted * with two exceptions; it did not 
include in the first paragraph the words “‘to insure the fulfill- 
ment of accepted international obligations” and in the second 
paragraph it commenced by saying: “This League should be 


*Lansing, op. cit. p. 149 sqq. 
p. 80 sq. 
=p. 76. 


82 THE DRAFTING OF THE COVENANT 


created as part of the Peace” instead of “This League should be 
created as an integral part of the general Treaty of Peace.” 

The change in this latter regard to more definite and precise 
language was undoubtedly due to Wilson. The change made the 
intention perfectly clear. I do not, however, attach the impor- 
tance to the wording that Baker does. It is unwarranted, in my 
opinion, to attribute any subtle purpose to the words “as part of 
the Peace.” They may at least be interpreted as having the same 
meaning as Wilson’s more specific language. At any rate this 
is to be said: the British record in the matter is clear. They 
submitted their resolution, a short and simple draft, for Wilson’s 
consideration some days before it came up and no one objected 
to his change in the language. 

Still more erroneous is Baker’s idea that there was some- 
thing Machiavellian in the proposal “‘to get the discussion of the 
League out of the Council and into the hands of a special com- 
mittee.” The notion that the proposal of a Committee would 
tend to delay the Covenant is fantastic; the fact on the contrary 
was that without some sort of a Commission or Committee there 
would have been no Covenant at all. The sure way of prevent- 
ing any Covenant from coming into existence would have been 
to create no Committee and to go on discussing it in the Council 
of Ten, a body singularly unsuited for such a debate and which, 
to mention only two names, neither Lord Robert Cecil nor Gen- 
eral Smuts generally attended. 

The composition and size of the Committee are other matters 
to which I shall advert, but the necessity of a Committee must 
be apparent to every one. Furthermore, there is not the slightest 
evidence in the record that the President ever had any other view 
than that of some kind of a Committee. Baker says that Wilson 
“evidently” expected that the League of Nations “would be dis- 
cussed by the Council itself and its principles, if not its details, 
worked out by the heads of States as the basis of the settle- 
ments.” Well, on January 21, at the Council of Ten, Wilson 
said that he intended to submit the question of the League of 
Nations at the next meeting; Lloyd George at once agreed and 
“suggested that the question be taken up at the next meeting and 
that those present lay down the general principles and then ap- 
point an international committee to work out the constitution of 
the League.” Wilson did not offer the slightest objection to the 


+See generally in connection with the following pages, Baker, op. cit., vol. i, 
Pp. 235 Sqq. 


THE COVENANT IN THE TREATY 83 


formation of a Committee. He simply “thought it well that the 
committee be formed of those men who had already studied the 
question.” Lloyd George then said he would like to have both 
General Smuts and Lord Robert Cecil on the Committee and 
suggested that it be formed of two persons representing each 
of the Great Powers. 

There is nothing in this to indicate at all that Wilson did not 
want a Commission. Indeed, it was he himself who on the next 
day suggested at the Council of Ten that “an initial draft for the 
League of Nations be made by a commission appointed by the 
Great Powers.” 

If one looks at the situation on January 22, and immediately 
prior thereto, the matter is, if possible, clearer as to the necessity 
of some kind of a commission. Mr. Wilson had brought a draft 
with him; he had changed it in Paris and then revised it further. 
The British had a draft, which Wilson had studied,? but even 
so, General Smuts and Lord Robert Cecil were not wholly of the 
same mind as to all details; hardly less important, the French had 
their proposals; and there was an Italian draft about to be pre- 
sented, to say nothing of the ideas of other countries, great and 
small. To suggest under these circumstances that a definitive 
text could be drawn up except through the instrumentality of 
some kind of a committee I would have thought impossible ex- 
cept for the fact that it has been suggested. 

Certainly if there had been no Commission, Wilson would 
not have had the draft Covenant that he did have on February 13, 
I9I9Q. 

Assuming a Commission, the next question logically arising, 
and a question distinct from the necessary existence of such a 
body, was, how large should it be, or, in other words, how many 
Powers should be represented on it, with either one or more 
delegates. 

The Commission, as it turned out, was finally composed of 
Ig members. It is difficult to see how, as a minimum, it could 
have been composed of less than ten, two from each of the five 
Great Powers. It does not appear that Wilson thought of a 
Committee smaller than this. True, he spoke in the Council of 
Ten of “a small Committee of a few men;” but he was obviously 
referring to his previous expression “the commission of ten.” 

Now Baker’s idea is that “the other heads of States’? (mean- 


* Printed copies of his Second Paris Draft were available January 21. 
? See Document Io. 


84 THE DRAFTING OF THE COVENANT 


ing Clemenceau and Lloyd George and perhaps Orlando, although 
later in the same paragraph he speaks of Sonnino, who was not a 
“head of State”) ‘began by making the new commission as awk- 
ward and unwieldy as possible—as nearly a debating society— 
by adding members to it from as many small nations as possible.” 

I take direct issue with this statement. The facts of the situ- 
ation were such that neither Wilson nor Lloyd George nor 
Clemenceau nor all of them together could possibly have had a 
Commission to consider this matter consisting only of representa- 
tives of the five Great Powers. 

The Small Powers were in a state of almost open revolt 
against the limited representation which was being accorded to 
them on various Commissions. There were violent discussions 
on this subject and in regard to no Commission were they more 
insistent than that which was to deal with the League of Nations. 
The proposal of the Great Powers that the Commission should 
consist of fifteen, that is to say, five Small Powers with one repre- 
sentative each in addition to the Great Powers with two each, 
was not enough for them. They debated it openly in vigorous 
language at the Plenary Session of January 25 when representa- 
tives of eleven countries joined in the criticism. They objected 
even more strongly at their meeting 1 on January 27; and it was 
due directly to the insistence of the Small Powers that the Com- 
mission was increased to nineteen. Any thought that that Com- 
mission could have been constituted without having on it a repre- 
sentative of any one of such Powers as Belgium, Serbia and 
Poland, to mention only three, was impossible. To leave off 
every Latin-American country was equally impossible. 

The strength of the sentiment of the Small Powers was shown 
at the Second Meeting of the Commission on the League of Na- 
tions on February 4. That Commission was then composed of 
fifteen members and the question of increasing it to nineteen was 
brought forward by Hymans and, despite the opposition of Wilson 
and of Cecil, was pressed to a vote and carried by a vote of nine. 
The minutes of the Commission say very little on this point; but 
the discussion is quoted at some length later.” 

Wilson’s suggestion of having a draft first made up by a 
Commission of the Great Powers and then submitted to a larger 
Commission on which all the Small Powers would be represented 
would have been most unfortunate if it had been carried out. 


iA meeting of the “Powers with Special Interests.” 
p. 142 sqq. 


THE COVENANT IN THE TREATY 85 


The Small Powers would have defeated it; but it would have 
been highly inadvisable, even had it been possible. It would have 
meant two discussions, one successive to the other, with conse- 
quent delay and confusion. With that suggestion, if it had been 
adopted, again Wilson would not have had his draft Covenant 
on February 13. 

What are we to say then of the colloquy in the session of 
January 22 of the Council of Ten, which Baker reproduces at 
some length because he finds it “at once so subtle, so significant, 
so touched, indeed, to the understanding mind, with irony”? 

My mind finds in it, on the contrary, a highly common sense 
recognition by Lloyd George and Clemenceau that the exclusion 
of Belgium and all other Small Powers from the drafting of the 
Covenant was an impossibility and a reluctant acceptance of the 
facts by Wilson, reluctant because of his belief in the undoubt- 
edly sound general proposition that a small committee is more 
effective than a large one. 

To sum up, the event proves everything that I have said. 
Wilson’s proposal of ten members was not defeated by the 
machinations of Lloyd George and Clemenceau by their proposal 
of fifteen members. Both proposals were alike over-ridden by 
the smaller Powers who made the Commission one of nineteen 
members. 

As a tactical matter and in the final result, the fact that four- 
teen countries were represented on the Commission on the 
League of Nations contributed very largely to the acceptance of 
the Covenant generally. It did not prevent speed in the working 
of the Commission; it did not prevent certain details being 
worked out by smaller sub-committees, any more than it pre- 
vented those personal discussions which always take place out- 
side formal meetings of any sort. 

Wilson was right in wanting the Covenant an integral part 
of the Treaty and in carrying his point as to that; he was mis- 
taken in the kind of machinery desirable for the drafting of the 
ultimate text; in this regard the suggestions of Lloyd George 
and Clemenceau were wise. Even those who are labelled “Old” 
may sometimes, despite the capital letter, put forward a sound 
and an honest proposal. Finally, Wilson was right in sitting 
himself as a member and of course as Chairman of the Com- 
mission. 

There is more to be said on this question of the Covenant in 
the Treaty. Wilson left Paris on February 14 and returned 


86 THE DRAFTING OF THE COVENANT 

=a 

from the United States on March 14. Before his departure a 
very important decision had been reached in the Supreme Coun- 
cil, supported by Wilson and Balfour and finally accepted by 
Clemenceau. The discussion is to be found in full in Document 
16, extracted from the Minutes of the Supreme War Council of 
February 12. 

That decision was that there were to be signed Preliminaries 
of Peace with Germany, containing only the military, naval and 
air terms. The question arose because one of the extensions of 
the German Armistice was about to expire. The decision was 
made on the afternoon of February 12 and I quote here the reso- 
lution of the Supreme Council in full, although it was agreed 
that only its first three paragraphs were to be presented to the 
Germans: 


The Supreme War Council agree that: 


(1) As a condition of the renewal of the Armistice Marshal 
Foch shall stipulate that the Germans shall desist from all offen- 
sive operations against the Poles, whether in Posen or elsewhere. 

(2) The Armistice with Germany shall be renewed for a short 
period terminable by the Allied and Associated Powers at three 
days’ notice. 

(3) Detailed and final naval, military and air conditions of 
the preliminaries of peace shall be drawn up at once by a Com- 
mittee to be presided over by Marshal Foch and submitted for 
the approval of the Supreme War Council; these, when approved, 
will be presented for signature to the Germans, and the Germans 
shall be at once informed that this is the policy of the Associated 
Governments. 

(4) After the signature of these preliminaries of peace, Ger- 
many will be permitted to receive such controlled quantities of 
food, and raw materials for the rehabilitation of her industry, as 
shall be deemed just, having regard to the prior claims of Allied 
countries, especially those on whose industries Germany had 
deliberately inflicted damage. 

(5) The question of the quantities of food and raw material 
to be allowed to Germany after the signature of the preliminaries 
of peace shall be referred to the Economic Council for examination 
and report. 


In other words, the idea was that there was to be a paper 
called “Preliminaries of Peace” which Germany should sign and 
which of course would mean another and a later document con- 
taining all the other terms 


THE COVENANT IN THE TREATY 87 


Baker describes this as a victory for Wilson.t He says that 
he “had thus won his contentions. There was to be a prelimi- 
nary treaty containing the military, naval and air terms. * * * * * 
He felt this quick settlement of the military terms a most im- 
portant move. It fitted in perfectly with his other plans for the 
peace.” 

Of course the decision was never carried out. There was no 
preliminary Treaty. If it had been carried out, it would have 
been a complete upset of Wilson’s program of having the Cove- 
nant as an integral part of the Treaty of Peace. Neither Wilson 
nor apparently any one else had thought through the question of 
a preliminary Treaty; certainly Wilson had taken no legal ad- 
vice about it; and certainly, as I shall show, his ideas as to how 
such a preliminary Treaty would come into force were not wholly 
definite at this time. 

The status of war is a legal status. The status of peace is 
also a legal status. The two cannot exist together. In other 
words, if you have a status of war, you can end it only once by 
turning it into a status of peace. Any subsequent treaty is a 
treaty between former belligerents, not a treaty of making peace 
in the strict sense, although it may have merely terms and condi- 
tions of peace in it. So if there had been a preliminary Peace 
Treaty with Germany containing the military terms, that Treaty 
would have had to be ratified, it would have had to be accepted 
by the United States Senate and it would have ended the state of 
war. Undoubtedly, it was desirable to end the state of war and 
to bring about a state of peace. But to end it by such a prelimi- 
nary Peace Treaty would have defeated Wilson’s program of the 
Covenant as “an integral part of the general Treaty of Peace.” 
It would have left the Covenant and a great many other things 
for future discussion, which was in substance the plan of Senator 
Knox and the contrary of the plan of President Wilson. 

Certainly there may be Preliminaries of Peace followed by 
a definitive or more definite treaty. There have been many in- 
stances of such Preliminaries of Peace; but, as Phillipson ? says 
in a chapter which treats exhaustively of the matter, “Prelimina- 
ries of peace are, of course, a Treaty.” 

The idea of having Preliminaries of Peace was very general 
during the Paris Conference. Colonel House had always fa- 
vored it. Many of the documents printed at the time had as a 


*op. cit. vol. i, pp. 290, 201. 
* Termination of War and Treaties of Peace, chapter iii, p. 98. 


88 THE DRAFTING OF THE COVENANT 


heading “Conference on the Preliminaries of Peace” or some 
equivalent expression. But any Preliminaries of Peace contain- 
ing only military terms would not, if such a paper had ever been 
drawn up, have been accepted by any one of the chief belligerent 
Allies in Europe. Under the hypothesis, it would have meant a 
paper which said nothing about Alsace-Lorraine, the restoration 
of Belgium, reparations, Poland, or the German colonies, to 
mention only a few headings, and of course which would have 
said nothing at all about a League of Nations. If Preliminaries 
of Peace had been written, they would have included much more 
than military terms. 

What Wilson had in mind, as well as the legal situation and 
its possibilities, came into clear view at a little later date, after 
his return to Paris. On March 17, at the Supreme War Council, 
the draft military, naval and air terms were under consideration, 
and when the so-called ‘“‘General Articles’? were reached, the fol- 
lowing remarks ensued, beginning with a very clear statement 
and request by the French legal adviser: 


M. Fromageot asked for a ruling as to the character of the 
document that the Conference wished to present to the Ger- 
mans. If the Convention under discussion were to be considered 
merely as a set of military clauses for immediate execution by the 
Germans, and not as a Treaty of Peace, it was to be feared that 
when the Treaty of Peace was presented to Germany, she would 
argue that the clauses previously accepted had not been peace con- 
ditions, and consequently were open to fresh discussions. On the 
other hand, if the articles under consideration were to be con- 
sidered as final peace conditions, then it would be necessary for 
them to be ratified by the legislators of the various countries, par- 
ties to the agreement, and in that case he would suggest that Article 
47 be made to read: 

“After the expiration of a period of three months from 
the date of exchange of ratifications of present stipulations 
for German laws’”’ etc. 

President Wilson remarked that the same question arose in 
regard to Article 48, and asked that that article be read before 
the whole question came under discussion, 

(Article 48 was then read.) 

President Wilson, continuing, said that the paragraph as it 
now read indicated that these terms would be part of the Armi- 
stice. But if they were to constitute the preliminary Treaty of 
Peace, the wording was not correct. In this matter he found 
himself in considerable difficulty, and he would be compelled to 


THE COVENANT IN THE TREATY 89 


seek legal advice. He had assumed that this preliminary Con- 
vention would only be temporary until the complete treaty was 
prepared, and that it would have the character of a sort of ex- 
alted armistice, the terms being re-included in the formal treaty. 
If this preliminary Convention should have to be submitted to 
the Senate for a general discussion there, he knew from the usual 
slow processes of legislatures that it would be several months 
before it could be ratified. 

Mr. Balfour expressed the view that the statements made 
by President Wilson were most important and serious. As he 
understood the situation, the policy accepted was that a prelimi- 
nary peace should be made, each clause of which should be a part 
of the final act, so that by the settlement of the preliminary peace 
a great part of the final permanent peace would actually have been 
conquered. It now appeared, however, that the American Consti- 
tution made that full programme impracticable. 

President Wilson said he did not feel quite sure of his 
ground, and he proposed that the question be postponed until he 
could consult the constitutional lawyers, in whose opinion he had 
more confidence than in his own. For the present, it appeared to 
him that they would have to use the alternative phraseology pro- 
posed by M. Fromageot, namely: 

“After the expiration of a period of three months from 
the date of exchange of ratifications of present stipulations 
for German laws” etc. 

(Articles 47 and 48 were reserved for further consideration.) 
So what was in Wilson’s mind was a “sort of exalted Armis- 

tice” so far as the military clauses to be imposed on Germany 
were concerned, these terms to be “reincluded in the formal 
Treaty.” 1 The military clauses had in fact come up ? in connec- 
tion with the renewal of the Armistice and it was of their possible 
inclusion as Armistice terms that Wilson was thinking. There 
was thus no question at all of a preliminary Treaty in any proper 
sense of those words; and it seems superfluous to say that Wilson 
never suggested or thought for a moment that the Treaty of 
Peace with Germany with its agreements for the future and with 
its contemplated Covenant would not have to be submitted to the 
Senate. He had talked about the Senate in his speeches; he had 
had conferences with the members of the Senate Committee on 
Foreign Relations; at his conferences with others the attitude of 
the Senate was often mentioned; allusion to it was made in the 


* Cf. Baker, op. cit., vol. i, p. 296, who speaks of the “French attempt, which 
had already been balked by Wilson and Bliss, to crowd peace terms into the 
Armistice.” 

? On February 12. 


gO THE DRAFTING OF THE COVENANT 


meetings of the Commission on the League of Nations, at least 
from February 6 on. Perhaps nothing was more constantly in 
his mind than the fact that the Senate would have to act on the 
Treaty. 

I do not think, however, that any one could say that it was 
outside the realms of possibility to draft a renewal of the armi- 
stice with clauses binding Germany to accept for the future mili- 
tary terms therein set forth. Doubtless if such an attempt had 
been made the legal effect of it would not have been the same as 
similar clauses in the Treaty of Peace; and very likely, as Froma- 
geot suggested, such military terms would have been regarded as 
subject to further discussion by the Germans in connection with 
the Treaty; but they might, I think, have been put into an Armi- 
stice renewal for what they were worth. 

There is indeed one remarkable precedent which it may be 
that Wilson had in mind, namely, what was done by President 
McKinley at the close of the Spanish American war. What was 
called “A Protocol of Agreement embodying the Terms of a 
Basis for the Establishment of Peace between the United States 
and Spain” was signed on August 12, 1898, at Washington, by 
Mr. Day, Secretary of State, and by the French Ambassador, 
representing Spain. That extraordinary document was never 
submitted to the Senate. It was an Armistice Agreement in the 
sense that it provided for the suspension of hostilities; and there 
is not the slightest doubt of the constitutional power of the Presi- 
dent alone to conclude an Armistice; but that Protocol also pro- 
vided for the cession of Porto Rico and other islands to the 
United States and for the relinquishment of Spanish sovereignty 
over Cuba. Furthermore, it created a fait accompli, because it 
provided for the complete evacuation of Porto Rico, as well as 
Cuba, by the Spanish. Long before the Treaty of Peace with 
Spain came before the Senate, Porto Rico was held by American 
forces and by no one else. The legal right of the Senate to re- 
ject the proposed acquisition no doubt remained, but the practical 
possibility of turning back the clock had disappeared. 

In the evening of the day of that meeting of the Supreme War 
Council, March 17, Dr. Scott and I were called to Mr. Lansing’s 
office. The Secretary of State said that the President had ad- 
vanced the idea that afternoon that the preliminary Treaty of 
Peace need not be ratified by the Senate.t Lansing said he had 
been shocked at the idea and had told the President that that was 


*Cf. the remarks of Wilson at p. 88 sq. 


THE COVENANT IN THE TREATY gI 


impossible and the President had said to consult the legal advis- 
ers. Nothing whatever was said by Lansing as to the discussions 
in the Supreme War Council; the general question only was 
raised, as stated. 

My opinion being asked, I said that I did not think the ques- 
tion was debatable. The status of war could not be changed into 
the status of peace, so far as the United States was concerned, 
except by a Treaty consented to by the Senate. Dr. Scott was 
entirely of the same opinion and cited several cases to that effect. 
Lansing was in accord with our views and instructed us to pre- 
pare an opinion on the matter, which Dr. Scott wrote and which 
we both signed under date of March 18. I include it here, add- 
ing that the views which it expressed are beyond question entirely 
sound : 


The question submitted to the Technical Advisors for their 
opinion is whether a preliminary treaty of peace negotiated by the 
President would bind the Government of the United States from 
the date of its signature or whether it would require the advice 
and consent of the Senate to its ratification, and only bind the 
Government upon and from the latter date. 

In providing that the President “shall have power, by and with 
the advice and consent of the Senate, to make treaties’ (Art. 2, 
Sec. 2), the Constitution makes no distinction between classes of 
treaties which are subject to the advice and consent of the Senate, 
and in determining whether an instrument is or is not a treaty 
within the constitutional provision the name given to it is not 
essential; it must be construed according to its purposes and 
objects. 

-As Commander in Chief of the Army of the United States, 
the President has the authority to conclude an armistice and in- 
corporate therein such terms of a military nature as the exigencies 
of the situation may seem to him to require. Of sucha nature was 
the “Protocol of agreement embodying the terms of a basis for 
the establishment of peace” between the United States and Spain 
signed on August 12, 1898, which was not submitted to the advice 
and consent of the Senate. This protocol suspended hostilities upon 
its signature, embodied a promise on the part of Spain to relinquish 
her sovereignty over Cuba and to cede Porto Rico and certain 
other islands to the United States, and made provision for their 
evacuation by the Spanish troops. It provided for the occupation 
of Manila by American forces “pending the conclusion of a treaty 
of peace” and for the appointment of “commissioners to treat of 
peace.” 


g2 


I4 
‘Pse 
of 


Or 


THE DRAFTING OF THE COVENANT 


In the case of the Preliminary Treaty of Peace between France 
and Germany signed at Versailles on Feb. 26, 1871, ratification by 
both parties, namely the Emperor of Germany and the French 
National Assembly, was expressly stipulated (Art. x). The 
same is true of a number of other important preliminary peace 
treaties (see Phillipson, Termination of War and Treaties of 
Peace, p. 99). 

The declaration of war by the United States Congress on 
April 6, 1917, created a status of war which may only be termi- 
nated by a treaty of peace equally as valid as the law of the land 
with the declaration of April 6, 1917, and “as in the case of other 
treaties, a treaty of peace is not definitively binding until the 
exchange of ratifications ; and a state of war in the technical sense 
continues until the date of exchange” (Crandall, Treaties, Their 
Making and Enforcement, p. 352, citing several decisions of the 
Supreme Court). 

The legal effect of the protocol between the United States and 
Spain of August 12, 1898, was judicially passed upon in the case 
of Hijo v. United States, in which the United States District 
Court held that “The protocol and proclamation did not end the 
war. The protocol worked a mere truce. The President had not 
the power to terminate the war by treaty without the advice or con- 
sent of the Senate of the United States.’ In confirming this de- 
cision, Mr. Justice Harlan, speaking for the Supreme Court, de- 
clared that “a state of war did not in law cease until the ratification 
in April, 1899 of the treaty of peace” (194 U. S., pp. 317 and 
323)- 

It is therefore submitted that a preliminary agreement signed 
by the President, but not ratified by the Senate, can have no legal 
effect, so far as ending the war is concerned, and can operate only 
as a truce; and that if it is desired in the preliminary agreement, 
by whatever name it may be called, to effect the legal transition 
from the state of war to a state of peace, this may only be accom- 
plished by submitting it to the Senate for its advice and consent 
according to the constitutional provision. 


Undoubtedly, while Wilson was away from Paris (February 
to March 14), the idea of separating the Covenant from the 
eaty revived, despite the resolution of the Peace Conference 
January 25. Just how it revived and through whom is more 
less of a mystery of which I shall suggest a solution of my 


own; but certainly there are some things that had nothing to do 
with it; and the resolution introduced by Balfour on February 22 


in 


the Council of Ten, directing the speeding up of the work of 


THE COVENANT IN THE TREATY 93 


the Conference, was not a part of the idea, as Baker supposes. 

Balfour’s resolution provided that various Commissions which 
had been considering various subjects should send in their reports 
by March 8. It certainly was a very wholesome resolution. The 
work of the Conference had been dragging and in a good many 
respects was not getting anywhere. The absence of Wilson and 
the bullet of February 19 which kept Clemenceau in bed for a 
few days had a tendency to slow things down. The world was 
insistent not merely on a return to peace but on a decision as to 
many open questions of the utmost importance. 

The text of the resolution relating to the German Treaty,” 
as adopted by the Council of Ten on February 24, was this: 


1. The Conference agree that it is desirable to proceed without 
delay to the consideration of preliminary Peace Terms with Ger- 
many and to press on the necessary investigations with all possible 
speed. 

2. The preliminary Peace Terms, other than the naval, military 
and air conditions, should cover inter alia the following points: 

(a) the approximate future frontiers of Germany, and the 

renunciation of colonies and territorial rights outside 
Europe; 

(b) the financial conditions to be imposed on Germany; 

(c) the economic conditions to be accorded to Germany; 

(d) responsibility for breaches of the laws of war. 

3. In order that the Conference may have at its disposal with 
the least possible delay the results of the labours of the various 
Commissions which have been investigating those subjects, it is 
requested that the various Commissions will send in their re- 
ports to the Secretary-General not later than Saturday, March 
8th. This will not apply to Commissions set up after February 
15th which may be unable to render their final reports at so early 
a date, but it is requested that in these cases interim reports may 
be presented dealing with all matters affecting the preliminaries of 
peace with Germany. 


As I have shown, the whole question of some kind of a pre- 
liminary Treaty as distinct from a Treaty which was not prelimi- 
Mary was in a fog in the minds of nearly everybody who was 
talking about it. But any kind of a preliminary Treaty without 
the Covenant, whether it included only military terms or whether 
it included military terms and other terms, would equally have 


*As to this and the following pages, see generally Baker, op. cit. vol. i, 


p. 295 5qq. cee 5 4 E 
There were similiar resolutions adopted, relating to the other Treaties. 


94 THE DRAFTING OF THE COVENANT 


been a defeat of Wilson’s plan for the Covenant “as an integral 
part of the general Treaty of Peace.” 

Furthermore, the resolution of Balfour of February 22 was 
not contrary to the statement of Wilson in the Council of Ten on 
February 12. I quote one sentence 1 of that statement from the 
minutes of the Council of Ten: 


But he (Wilson) did not wish that during his unavoidable 
absence such questions as the territorial question and questions of 
compensation should be held up. 


Baker thinks the Balfour resolution was part of an “intrigue 
against his (Wilson’s) plan of a preliminary military and naval — 
peace” which (that is the “intrigue”) would have “indirectly” 
killed the League or “cut it out of the Treaty.” On the contrary 
the plan of a preliminary military and naval peace would have 
directly cut the League out of the Treaty and indirectly killed it. 

The “extraordinary new resolution” (of Balfour) was merely 
an attempt to get the work of the Conference on and in shape for 
its discussion by Wilson on his return. 

The notion that the pressing forward of the consideration of 
other questions hindered or delayed the preparation of the mili- 
tary terms is contrary to reason. 

The Commissions working on the matters covered by Bal- 
four’s resolution had nothing whatever to do with the military 
terms. Why should they not get on with their work and con- 
clude it? What day could have been more appropriate than 
Saturday, March 8, for such of the Commissions as could then 
report? Wilson was due back on March 14 and it was common 
sense from every point of view that haste should be made. 

My view is the opposite of that of Baker in this matter ;he says: 


“Not one word was said in the Council (of Ten) about the 
preliminary military terms—the most important outstanding busi- 
ness before them—for an entire week” (after February 12). 


At that time the military terms were not business of any kind, 
outstanding or otherwise, before the Council of Ten. Of course 
nothing was or could have been said about them. The military 
terms had been referred on February 12 to the military, naval 
and air experts, the only people who could possibly write them, 
and the first draft of even the military terms proper (as distinct 
from naval and air) was not circulated until February 28. 


1This sentence is represented by dots in the quotation of Baker, op. cit., 
yol. 1, p. 290. 


THE COVENANT IN THE TREATY 95 


March 1 was the earliest day on which the Council of Ten could 
consider any military terms at all and the naval and air terms 
were not then ready. 

The preparation of these military, naval and air terms was a 
very difficult technical task, as any one who reads the twenty 
pages of the Treaty of Versailles that.contain their text with its 
schedules and tabulations, can see; and after they were first 
drafted, they raised important differences of opinion and were 
completely changed even in some matters of principle before they 
were adopted. There was a direct difference of opinion between 
Foch and Lloyd George as to how the German army should be 
constituted, by short term service or otherwise. The question 
whether there could be a distinction between civil and military 
aviation, to mention only one example, was of great difficulty; 
discussions about these military terms went on until after 
Wilson’s return and he participated in them in detail and at length 
in the Council of Ten; and even on March 15 he requested post- 
ponement of their consideration till March 17. 

Indeed it was not until the latter part of April that the mili- 
tary terms were definitely and finally agreed to, despite the fact 
that every one considered them urgent. Both Clemenceau and 
Foch on March 1 asked that decision be reached “without delay.”’ 
The divergences of view, however, were so important that they 
could not be reconciled without earnest and prolonged debate. 
If the military, naval and air terms had been considered to the 
exclusion of everything else, they could perhaps have been sepa- 
rately presented to the Germans some short time prior to May 7, 
when the entire proposed Treaty was presented. But I repeat 
what I have said above that any such separate document (as a 
preliminary Treaty) would not only have defeated Wilson’s plan 
of the Covenant in the Treaty, but would have been impossible 
of acceptance by any one. 

Going back to Balfour’s resolution and the discussions on it 
in the Council of Ten on February 22 and February 24, it will be 
seen that various expressions were used: “preliminary peace 
terms,’ “terms of peace of a preliminary peace,” “final 
military terms,” “final peace treaty” and so on. Even “prelimi- 
nary conditions” was suggested. No one except Lansing seemed 
to have any very clear idea in his mind as to what the procedure 
might or would be; but the common sense view of the matter at 
that time was well expressed by Balfour at a meeting of the 
Council of Ten on February 25, where the point under discussion 


96 THE DRAFTING OF THE COVENANT 


was the dispatch of General Haller’s army to Poland; the minutes 
read: 


Mr. Balfour was most anxious to hasten the conclusion of 
the preliminary terms of peace. He had himself moved a propo- 
sition with that object in view. He could not, therefore, be 
accused of hampering the attainment of that object. But when 
Marshal Foch asked the Conference to defer the sending of a 
Polish division to Poland until the preliminaries of peace had been 
concluded with Germany, he evidently underrated the difficulties 
of the latter task. A discussion with a view to bringing about a 
preliminary peace could hardly be brought to a satisfactory con- 
clusion unless three or four such questions as the following were 
first settled, that is to say: financial questions, the question relating 
to the left bank of the Rhine, the question of Dantzig, etc., ques- 
tions which could hardly be settled before President Wilson’s 
return to Paris. No doubt other questions connected with the 
future frontiers of Germany could practically be settled in Presi- 
dent Wilson’s absence. For instance, the frontiers between 
France and Germany, the frontiers between Denmark and Ger- 
many and the frontiers between Poland and Germany excluding 
Dantzig. 

On the other hand, the Conference could not move a step until 
the reports of the Allied Commissions, which were now at work 
on those problems, had been received. Those reports could not, 
however, be expected before the 8th March next. The Conference 
would then have a week to consider these reports before the return 
of President Wilson, and during that time no doubt some spade 
work could be done. It was evident, however, that, if the dates 
suggested by him were correct, it would be impossible to have 
the preliminary terms of peace ready, covering finance, disarma- 
ment, future maritime conditions, the question of the left bank of 
the Rhine, territories adjoining Alsace-Lorraine, Dantzig, etc., 
regarding which well-informed people held very divergent views. 
It would be impossible to draft a peace, involving all those ques- 
tions, at the earliest before the end of March, and even that 
would be a very sanguine estimate. 


A fairer or more reasonable statement could hardly be made. 
There was work which could be done and which should be done 
while Wilson was away; Wilson had himself expressed such a 
wish. There were many questions, however, “which could hardly 
be settled before President Wilson’s return;’’ the work on these 
was preliminary to his consideration. 

In order that the reader may judge for himself the merits of 
the Balfour resolution I reprint as Document 17 the entire dis- 


THE COVENANT IN THE TREATY 97 


cussion on the subject at the Council of Ten on February 22 and 
February 24. 

Reference should be made to one other question regarding 
Balfour’s resolution. Baker seems to think*+ that the resolution 
should have said something about the Covenant. He says that 
the resolution provided that the Council should proceed without 
delay to the consideration of “practically everything except the 
League of Nations!” But this was exactly what the situation 
demanded at the time. Any reference to the Covenant in the 
resolution would have been not only impertinent but almost an 
insult to President Wilson. The resolution referred specifically 
to the work of the various Commissions. Wilson had been 
Chairman of the League of Nations Commission and that Com- 
mission had made its report on February 14 with a draft Cove- 
nant. That draft Covenant had not been definitely accepted by 
the Peace Conference; but it was before all its members for con- 
sideration. 

For the Council of Ten in these circumstances to have at- 
tempted to do anything or even to say anything about the Cove- 
nant in the absence of Wilson, whose return was announced and 
known, would have been a most extraordinary and shocking 
thing. It was generally thought, and as the event showed, cor- 
rectly, that Wilson himself would propose certain changes in 
the draft. The matter of the Covenant was further advanced in 
procedure and in form at the time of the Balfour resolution than 
any other part of the Treaty; and it was the one thing with which 
the Council of Ten had nothing to do while Wilson was away. 

Whatever may have been the origin of the rumour that “the 
League was sidetracked,’ the common sense plan of Balfour to 
speed up the work of the Conference formed no part of any such 
scheme. 

Baker goes so far astray in the matter that, while he considers 
that the plan of having the military terms immediately completed 
was Wilson’s plan on February 12, he finds that the urgency of 
Foch on March 3 to proceed with the military terms was a part 
of the “sharp scheme” to block Wilson; and that Wilson coun- 
tered on March 15 by “refusing to be rushed into decisions,” and 
by asking “for a postponement” regarding these same military 
terms. In other words, Wilson’s plan was to have military 
terms drawn up immediately; the urgency of Foch to complete 


* op. cit. vol. i, p. 208. 
* op. cit. vol. i, p. 309, 310. 


98 THE DRAFTING OF THE COVENANT 


the military terms definitely was in opposition to Wilson’s plan; 
and Wilson’s decision to postpone the consideration of the mili- 
tary terms, so that he could go over them carefully, tended to 
defeat this opposition. The effort to prove a plot where none 
existed could not well go farther. 

Those who believe that the only explanation of any event at 
the Peace Conference is to be found in a sort of Sherlock Holmes 
discovery and exposure of the tangles of mysterious plots and 
counter plots will of course not accept my conclusions. On the 
other hand, those who are willing to study the documents and to 
look at the situation in the light of its realities and legal necessi- 
ties will, I think, agree with my view, which is this: 

Immediately before Wilson’s first departure from Paris, in 
February, he had, without much consideration of details, agreed 
to a proposal that military terms should be drawn up and pre- 
sented to Germany at once. The matter was discussed in con- 
nection with the renewal of the Armistice and the idea was that 
the blockade would be raised upon the acceptance of these mili- 
tary terms by Germany. 

Let me quote Wilson’s own language! of the afternoon of 
February 12: 


. . . He therefore thought it was possible to frame the terms of 
Germany’s disarmament before settling the terms of peace. He 
was encouraged in this belief by the assurance that the military 
advisers could produce a plan in 48 hours. It might take more 
than 48 hours for the heads of Governments to agree on this plan. 
It was not his idea that the Armistice should be protracted very 
much longer, but a definite term could not be fixed until the Gov- 
ernments had matured their judgment concerning the disarmament 
of Germany. Once this point was settled, the Germans could be 
given short notice to accede to our demands under pain of having 
the Armistice broken. The main thing was to do this while our 
forces were so great that our will could not be resisted. The plan 
he proposed would make safety antedate the peace. He thought 
that this brought the two views into accord as regards the purpose 
in the minds of both parties to the morning’s debate. 


Following this, Clemenceau said definitely that President 
Wilson was going away and that he would not like to discuss a 
matter of such importance as these military terms in his absence. 
Wilson then agreed that “it might not be possible for the Govern- 


*See Document 16. 


THE COVENANT IN THE TREATY 99 


ments to be ready in a month.” Accordingly, he then suggested 
an indefinite renewal of the Armistice with notice to the Germans 
that final military terms would be put forward, saying: ‘The 
Armistice would then be ended by the formulation of definite 
preliminary terms of peace on military conditions.” 

The resolution which was agreed to and which I have quoted? 
was rather vague from a technical point of view. It spoke of 
“detailed and final naval, military and air conditions of the pre- 
liminaries of peace’’ and that these were to “be presented for 
signature to the Germans.” Later on it called them “these pre- 
liminaries of peace.” 

The consequences of the carrying out of such a resolution 
were not in the mind of any member of the Supreme War Coun- 
cil. If they had been, no one would have agreed to it, least of 
all Wilson and Clemenceau. If the resolution meant what it said 
or what it seemed to say, it meant a Treaty of Peace with Ger- 
many, labelled “preliminary,” but still a Treaty of Peace, which 
contained nothing except military terms or, in other words, from 
the point of view of Clemenceau, nothing about Alsace-Lorraine 
et al. and from the point of view of Wilson, nothing about the 
Covenant. 

While Wilson was away from Paris, it was very natural that 
the effect of such a plan should come to be gradually realized and 
its consequences (if carried out in any such form at all) become 
at least dimly apparent. A very general notion resulted from 
this that there was to be some kind of preliminary treaty, saying 
nothing about the Covenant, that Wilson had agreed to this, as 
in one sense it might be thought that he had, and that conse- 
quently the Covenant was “out of the Treaty.” 

Such is my explanation, which is at least in line with all the 
evidence yet available. 

The only other light that I can throw on this question of 
separating the Covenant from the Treaty is to mention the fol- 
lowing circumstance: on March 6 Mr. Gordon Auchincloss told 
me that he had been discussing with Colonel House the question 
of having the Covenant in a separate treaty so as to concede 
something to the Senate. My Diary reads: “I expressed an 
opinion very unfavorable to this and dictated a memorandum 
about it on my return to the office.” The memorandum, which 
follows, was delivered on March 7: 


*p. 86. 


I0O THE DRAFTING OF THE COVENANT 


We are agreed that the Covenant of the League of Nations is 
an integral part of the Treaty of Peace in reality, whatever it may 
be in form, and that the Peace itself is one whole agreement in- 
cluding the Covenant for the League of Nations. 

The question is whether this integral whole should be drawn 
in two pieces: 


(a) The Peace Treaty containing numerous references of 
vital importance to the League of Nations; 
and 
(b) The Covenant of the League of Nations. 


The latter course would give to the Senate of the United States 
the opportunity, or at least the theoretical opportunity, of accept- 
ing the Peace Treaty and rejecting the Covenant. 

Looking at the facts of the situation it is obvious that the 
Peace Treaty, that is, the part of the Peace Treaty distinct from 
the Covenant, would have been agreed upon by the Powers on 
whose side we have fought, because of the creation of the League 
of Nations. If it were not for that creation they would insist, 
and would rightly insist, on a very different peace. 

To permit the possibility of the acceptance of those portions 
of the Peace to which the Allies have agreed only because of the 
Covenant and at the same time the rejection of the Covenant 
which is their consideration for the rest of the agreement, would 
in my opinion be a reproach to the honor of the United States. 

If the Peace, including the League of Nations, is an integral 
whole, as we are agreed, undoubtedly the Senate of the United 
States may reject it, for that is their right, but if they reject it the 
state of war will continue de jure, and it will then be possible to 
make a peace satisfactory to the European Powers on whose 
side we have fought, based upon the essential condition of a policy 
of isolation of the United States. 

But to make a peace which had been agreed to upon the belief 
that our policy of isolation was ended but which came into effect 
with the knowledge that our policy of isolation was not ended, 
would be so unjust as to be difficult of characterization. 


I never heard anything more on the subject and on March 14 
President Wilson was back in Paris. 


CHAPTER IX 
MANDATES 


ARTICLE 22 of the Covenant? provides for the régime of 
Mandates under the League of Nations. 

This Article, in substance and largely in language, is based 
upon a resolution of the Council of Ten of January 30, 1919. 

It is not my purpose to trace the origin of the idea of Man- 
dates or of the term itself.2 So far as the idea involved the 
principle that the control of uncivilized peoples ought to mean a 
trusteeship or wardship under which the interests of the natives 
themselves should be paramount, it had long been advocated by 
various writers; and “the interests of the populations” was the 
phrase used in the fifth of President Wilson’s Fourteen Points: 


A free, open-minded, and absolutely impartial adjustment of 
all colonial claims, based upon a strict observance of the principle 
that in determining all such questions of sovereignty the interests 
of the populations concerned must have equal weight with the 
equitable claims of the government whose title is to be determined. 


General Smuts in his Plan* had proposed the mandatory 
system for “territories formerly belonging to Russia, Austria- 
Hungary and Turkey.” The fact that he excluded the German 
colonies from the application of the system is highly significant. 
President Wilson incorporated the mandate idea at some length 
in his First and Second Paris Drafts* (Supplementary Agree- 
ments I-III). The language of the Wilson Articles here was 
very largely the language of Smuts; but Wilson made at least 
two substantive changes of moment. He omitted mention of 
Russia; and he added, “the colonies formerly under the do- 


* Various provisions of the Treaty of Versailles, apart from the Covenant, 
have a bearing on the matter, such as Articles 119 to 127, for example; but 
these as well as other relevant international agreements, such as the Treaty 
of Lausanne, are generally outside the scope of my work. 

7See generally, African Questions at the Peace Conference, by George 
Louis Beer (1923). 

* Document 5. 

“See Documents 7 and 9. 


TOI 


102 THE DRAFTING OF THE COVENANT 


minion of the German Empire.” So, by the Wilson plan, the 
“fundamental principles” set forth were applicable to “the peo- 
ples and territories which formerly belonged to Austria-Hungary 
and to Turkey.'and .) 292)..." the colonies formerly under the 
dominion of the German Empire.” 

No serious attempt was ever made to apply the mandate idea 
to any territory that had been within Austria-Hungary; indeed 
such application to all of that territory was clearly out of the 
question. I may refer here to the very interesting explanation 
which Wilson gave Orlando of the mention of Austria-Hungary 
in his draft in the conversation which the two statesmen had on 
January 30.1 In this conversation Wilson agreed to the omis- 
sion of Austria-Hungary, as indeed some of his own advisers 
had previously recommended;? and in his subsequent draft 
(Document 14), the Third Paris Draft of Wilson, where the 
language followed the resolution of the Council of Ten of Janu- 
ary 30, the territorial limitations were thus expressed: “to the 
colonies formerly part of the German Empire and to those terri- 
tories formerly belonging to Turkey which include Armenia, 
Kurdestan, Syria, Mesopotamia, Palestine and Arabia’ etc. 

It may be well to point out here a fact not generally recog- 
nized. People talk about the Peace Conference having “split up 
the Austro-Hungarian Empire,” all of which is nonsense. In 
truth Austria-Hungary had dissolved not only before the Peace 
Conference met, but before the date of the German Armistice 
(November 11, 1918). Separate Governments for Austria and 
for Hungary, Governments that were bitterly hostile to each 
other, had been set up in Vienna and in Budapest; and another 
Government, generally recognized, had been set up by the Czecho- 
Slovaks at Prague. No Peace Conference, nothing but armed 
force, could have reunited those three States. Furthermore, the 
partition of Poland had been de facto annulled, Austrian Po- 
land was a part of the new Poland, the Croats and Slovenes had 
thrown in their lots with the Serbs, and Italia Irredenta was 
redeemed. For the Peace Conference there remained questions 
of frontiers of the utmost importance, questions of rights of 
minorities and perhaps questions of the relations of these suc- 
cessor States inter se; but no solution of any of these problems 
along the lines of the mandate principle was either practical or 
desirable. 


+See the note of this conversation, pp. 65 sqq. 
*See Documents 7 and 


—> 


MANDATES 103 


So from a territorial viewpoint there were here involved the 
German colonies in Africa, the German islands in the Pacific 
and the territories to be detached from Turkey. Kiao Chow, 
for example, was an entirely separate question; also, it was un- 
settled and destined not to be settled till some years later, just 
how far the dismemberment of Turkey would go. 

From a selfish point of view, the United States had almost 
no interest in most of the problems presented. Every American 
would have regarded the acquisition of any territory in Africa, 
in any form, as a burden. Our interest in Turkey was senti- 
mental only and even sentimentally was substantially limited to 
Armenia; with the possible exception of Mosul, “the open door” 
as to Turkey, meant hardly more than a phrase. 

In the Pacific our situation was slightly different. Of course 
New Guinea meant nothing to the United States and we already 
had a part of Samoa. The only one of the small islands having 
any commercial value was Nauru, where the private rights, as 
distinct from the sovereignty, had been owned by the British since 
before 1914. That the remaining islands should not become 
naval bases and that we should have privileges for wireless com- 
munication in the Island of Yap were about all that, from the 
point of view of self interest, America could ask. 

The dispute that arose in the Conference was accordingly one 
regarding a principle, rather than a conflict between divergent 
national interests. The French, or at least the French Colonial 
Office, wanted to annex part of the Cameroons and Togo; and 
the three British Dominions interested wanted to annex respec- 
tively German South-West Africa, New Guinea and German 
Samoa. 

The British Government, meaning here the Government in 
London, was in a rather mixed and difficult position. The 
Colonial office was destined, under one form or another, to have 
the charge of German East Africa (except the region later as- 
signed to Belgium) and of portions of Togo and the Cameroons; 
but not only the form of that control, but even the fact of it, was 
rather small dust in the British balance. 

The idea that the acquisition of German East Africa (to take 
one instance) is a benefit to the acquiring country, a source of 
great wealth, part of the “spoils of the war’ and so on, is a very 
favorite theme with some writers and, expressed in terms of 
acreage, has been exploited by some Americans. The fact 
is that the control of German East Africa is disadvantageous 


104 THE DRAFTING OF THE COVENANT 


and burdensome. Any one who looks at the statistics and facts 
of the matter will have to admit this;1 but there is much clearer 
proof. Suppose that the British and the League of Nations 
offered to transfer that territory to us, either in the form of a 
Mandate or annexation or anything else, it would perhaps be 
difficult to find any American foolish enough to want his country 
to take it over; certainly those who would be loudest in their 
denunciation of such a proposal would be the writers and Sena- 
tors to whom I have alluded. As Wilson said at one of the 
meetings of the Council of Ten of January 30: “Many of these 
Mandates would constitute a burden, by no means a privilege, 
and a very serious burden.” 

Of course London wanted to keep peace in what I may call 
the Commonwealth family, but aside from that desire cared very 
little about annexation as distinguished from Mandates either in 
Africa or in the Pacific; indeed, while committed to the Japa- 
nese claim for islands North of the Equator, the British probably 
preferred the mandate system to annexation in either locality. 

Turkey was another matter; Egypt, the Suez Canal, the 
Persian Gulf, the Balfour declaration regarding Palestine, the 
rather vague commitments to the Arabs and the various agree- 
ments with the French and the Italians about Syria or Cilicia or 
Anatolia were all factors. : 

Furthermore, there was a good deal of difference in public 
opinion in Great Britain on this general question. During the 
election campaign in December (1918) it had been bluntly as- 
serted, for example, that Mesopotamia was a very rich country 
and if the British took it over it would help to pay the cost of 
the War. It may be doubted whether any one still thinks so, 
after writing down on the red ink side of the ledger £100,000,000 
or more spent in that region after 1919, even now that Mosul is 
to be credited to Iraq and if there be included with the credit all 
the profit which perhaps will be derived from the British share 
of the Mosul oil which may some day be exploited. 

On the other hand was a feeling which was pretty strong 
even in I9I9 against the extension of British colonial rule in 
any form whatever, anywhere. ‘‘The British Empire is big 

7A comparison between Tanganyika (373,000 square miles) and Texas 
(265,000 square miles) is of interest. Recent censuses give Tanganyika a 
population of 4,300,000 and Texas 4,700,000. Exports of Tanganyika for 1925 
were say $15,000,000, whereas shipments through Galveston alone in 1924 were 
$547,000,000. The British Government since 1920 has made to the former 
German possession various grants aggregating £2,500,000 which are either 


“Free” or which as yet have paid no interest. 
4 


MANDATES 105, 


enough” is the way that this sentiment was reflected among some 
of the most responsible British representatives at Paris. 

There was a noteworthy clash of views in the matter of the 
German colonies between Mr. Wilson on the one hand and Mr. 
Hughes of Australia and Mr. Massey of New Zealand on the 
other. According to common report, the discussions within the 
British delegation were even more heated and violent. The result 
was a victory for Mr. Wilson, not complete, but still substantial. 

Even in the “C” mandates, as we now know them or, in 
other words, German South-West Africa, New Guinea and other 
Pacific Islands which by the Covenant may be “administered 
under the laws of the Mandatory as integral portions of its terri- 
tory,’ the principle of trusteeship is firmly established; this was 
clearly shown in connection with the uprising of the natives in 
South-West Africa in 1923. And as to the other territories in 
Africa and those formerly in Turkey, the world took a very long 
step forward when Article 22 of the Covenant came into force. 

No one dissented at Paris from the view that Germany should 
lose her colonies and all of them. As I have shown? this was 
Wilson’s view at least as early as December 10, 1918. The matter 
was settled in a few words in the Council of Ten on January 24, 
recorded as follows: 


All he (Mr. Lloyd George) would like to say on behalf 
of the British Empire as a whole was that he would be very 
much opposed to the return to Germany of any of these Colonies. 

Sento ES tiki (SE LINE 


President Wilson said that he thought all were agreed to oppose 
the restoration of the German Colonies. 

M. Orlando, on behalf of Italy, and Baron Makino, on behalf 
of Japan, agreed. 


(There was no dissentient and this principle was adopted.) 


It was General Smuts who fathered the resolution 2 which 
was offered at the meeting on January 30 of the Council of Ten. 
If we go back to the Smuts Plan (Document 5) we find very 
naturally a considerable variance between the Smuts Plan and 
the Smuts resolution. In proposing the idea of Mandates, Gen- 
eral Smuts had expressly excluded its application to “the barba- 


1D. 41 sqq. 
For the text, see p. 109 sq. 


106 THE DRAFTING OF THE COVENANT 


rians” of Africa. Now, however, they were to be within the 
principle; and so clause 8 of the resolution (the vital clause, from 
the point of view of Smuts, Hughes and Massey)? intro- 
duced for some? of these “barbarians” the Mandates in their 
mildest and most milk and water form, that nearest to the an- 
nexation which Smuts desired, what we now call “C’’ Mandates, 
the territories which ‘“‘can be best administered under the laws of 
the Mandatory as integral portions thereof” etc. 

Indeed, a good deal of the Smuts resolution (aside from 
clause 8) may be found in a British “Draft Convention Regard- 
ing Mandates” which is marked “Revised January 24, 1919,” a 
copy of which Cecil handed me on January 25; the text of this 
follows: 


1. The High Contracting Parties agree and declare that all 
territories named in the protocol hereto as “vested territories” 
which in consequence of the late war are to be transferred to any 
states shall be held by such states upon trust to afford to their 
inhabitants peace, order and good government. 

2. The High Contracting Parties further agree that all the 
territories named in the protocol hereto as “assisted states” which 
in consequence of the late war are to attain their independence, 
shall be entitled to such assistance as they may desire for the 
purpose of securing peace, order and good government for the 
population of those states and may for the purpose of obtaining 
such assistance select in concert with the Council of the League of 
Nations some state member of the League as assisting power un- 
less under any convention in connection with the Peace Treaty an 
assisting power has already been assigned to them. 

3. In no vested territory shall the following practices be 
permitted : 


(1) Slavery and forced labour. 

(ii) Traffic in intoxicants deleterious to the health of the 
natives. 

(111) The establishment and maintenance of fortifications or 
fortified bases or native armed forces, except for the 
purpose of and to the extent necessary for guarding 
or policing the territory administered by the authority 
immediately responsible for their maintenance. 

(iv) The grant by the State of any rights or powers involving 
the transfer to private individuals or corporations of the 


*See the remarks of the last named in Document 18. 

* Namely, those of South-West Africa. All other mandates in Africa are 
“B” mandates; but as I mentioned earlier, all the Pacific Mandates are also 
“C”’ Mandates. 


MANDATES 107 


responsibility for discharging any of its obligations under 
this convention. 

(v) The reservation by any State of the produce of any 
territory for the benefit of its own nationals, whether by 
restriction on Export, Government Monopoly, or special 
concessions to individuals or companies. 

4. In all vested territories or assisted states there shall be 
maintained : 

(1) Freedom of conscience or religion, subject only to the 
maintenance of public order and morals; 

(i1) the policy of the open door or equal opportunity for the 
nationals of all the states Members of the League in 
respect of the use and development of the economic re- 
sources of such territories ; 

(iii) freedom of transit and equality of trade conditions in 
accordance with the provisions of the Conventions re- 
lating thereto; 

and execution shall be duly and faithfully given to 

(iv) the provisions of the Arms Traffic Convention. 

5. In respect of vested territories the States placed in charge 
thereof shall discharge all duties and responsibilities and be in- 
vested with all powers and rights of a sovereign government, but 
they shall report annually to the League of Nations on all matters 
relating to the discharge of their obligations under this conven- 
tion. Such Report shall contain full information as to the progress 
of the territories and particularly as to the steps taken to secure 
effectively the prevention of the prohibited practices. 

6. In respect of assisted States the assisting States shall be 
invested with such powers, rights, duties, and responsibilities as 
shall be given to them by any agreements with the Assisted States, 
and they shall report the terms of such agreements to the League 
of Nations and shall also make a report every year to the League 
showing the steps taken to carry out those terms. 

7. There shall be established by the Council of the League a 
Commission or Commissions to assist the League in the supervision 
of the mandatory states and the reports mentioned in articles 5 
and 6 shall be considered by such commission and commissions, 
who may make such recommendations thereon to the Council of 
the League as they shall think right. 


Note. The terms of this Draft Convention, would, of course, 
be additional to any special provisions contained in the 
Treaties creating each individual mandate. 


With this draft Convention was a Note, which suggested the 
advisability of some additional Declarations: 


108 THE DRAFTING OF THE COVENANT 


It may possibly be desirable to amend the annexed draft Con- 
vention regarding Mandataries in the direction of adding some 
general declarations agreeable to American and to international 
labour sentiment. The following additions are suggested as 
innocuous and in accord with British practice. 


PREAMBLE 


The High Contracting Parties who have united in creating, by 
the present Treaties of Peace and by the Covenant establishing 
the League of Nations, the new settlement of territories which 
formerly belonged to Austria-Hungary and Turkey and of the 
Colonies formerly under the dominion of the German Empire, 
recognizing that the League of Nations must be regarded as the 
guardian of the settlement thus arrived at and, in all matters not 
so finally settled, as Trustee for the peoples of the territories 
named in the Protocol hereto, now unite in laying down certain 
fundamental principles in accordance with which they are resolved 
that this trusteeship shall be exercised. 


ARTICLE I 


At the end, after the words “good government” insert the 
words “All policies of administration or economic development 
shall be based primarily upon the well considered interests of the 
peoples themselves. Although, in such territories, the inhabitants 
are not yet capable of nominating or explicitly approving the State 
appointed as mandatary of the League, it is recognized that the 
rule requiring the consent of the governed to their form of govern- 
ment should nevertheless be fairly and reasonably applied, and 
that the Mandatary should take into full and friendly considera- 
tion any expression of the desires of the inhabitants or of any sec- 
tion of them, with the object of determining their best interests, 
in view of all the circumstances of their situation and develop- 
ment.” 


ARTICLE II 


Add at the end after the words “assigned to them,” “The 
assisting State thus selected in accordance with the expressed 
desire of the autonomous people of the territory concerned shall 
adopt as the object of all tutelary functions discharged by it the 
development of that people, in as short a time as possible, into 
a political unit which can fully take charge of its own affairs, de- 
termine its own connections and choose its own policy.” 


Previous to the meeting of the Council of Ten on January 30, 
the Smuts resolution had been discussed at a meeting of the 


MANDATES 109 


British delegation on January 29. President Wilson had seen it 
also on the same morning. I received a copy of the resolution on 
January 29 and that copy had on it a marginal note from Colonel 
House to the President reading as follows: 


L. G. and the colonials are meeting at 11:30 and this is a draft 
of a resolution that Smuts hopes to get passed. He wants to 
know whether it is satisfactory to you. It seems to me a fair 
compromise. 


I reproduce the text of the resolution as offered at the meet- 
ing of the Council of Ten, indicating by italics the amendments 
then made, the words stricken being in parenthesis: 


1. Having regard to the record of the German administration 
in the colonies formerly part of the German Empire, and to the 
menace which the possession by Germany of submarine bases in 
many parts of the world would necessarily constitute to the free- 
dom and security of all nations, the Allied and Associated Powers 
are agreed that in no circumstances should any of the German 
colonies be restored to Germany. 

2. For similar reasons, and more particularly because of the 
historic misgovernment by the Turks of subject peoples and the 
terrible massacres of Armenians and others in recent years, the 
Allied and Associated Powers are agreed that Armenia, Syria, 
Mesopotamia, and Kurdestan, Palestine and Arabia must be com- 
pletely severed from the Turkish Empire. This is without preju- 
dice to the settlement of other parts of the Turkish Empire. 

3. The Allied and Associated Powers are agreed that advan- 
tage should be taken of the opportunity afforded by the necessity 
of disposing of these colonies and territories formerly belonging 
to Germany and Turkey which are inhabited by peoples not yet 
able to stand by themselves under the strenuous conditions of the 
modern world, to apply to these territories the principle that the 
well being and development of such peoples form a sacred trust of 
civilization, and that securities for the performance of this trust 
should be embodied in the constitution of the League of Nations. 

4. After careful study they are satisfied that the best method 
of giving practical effect to this principle is that the tutelage of 
such peoples should be entrusted to advanced nations who, by rea- 
son of their resources, their experience or their geographical 
position, can best undertake this responsibility, and that this tute- 
lage should be exercised by them as mandatories on behalf of the 
League of Nations. 


Ito THE DRAFTING OF THE COVENANT 


5. The Allied and Associated Powers are of opinion that the 
character of the mandate must differ according to the stage of 
development of the people, the geographical situation of the terri- 
tory, its economic conditions and other similar circumstances. 

6. They consider that certain communities formerly belonging 
to the Turkish Empire have reached a stage of development where 
their existence as independent nations can be provisionally recog- 
nized subject to the rendering of administrative advice and assist- 
ance by a mandatory power until such time as they are able to 
stand alone. The wishes of these communities must be a principal 
consideration in the selection of the mandatory power. 

7. They further consider that other peoples, especially those of 
Central Africa, are at such a stage that the mandatory must be 
responsible for the administration of the territory subject to con- 
ditions which will guarantee the prohibition of abuses such as the 
slave trade, the arms traffic and the liquor traffic (and the pre- 
vention of the military training of the natives for other than police 
purposes, and the establishment of fortifications or military and 
naval bases) and the prevention of the establishment of fortifica- 
tions or military and naval bases and of the military training of 
the natives for other than police purposes and the defence of 
territory, and will also secure equal opportunities for the trade and 
commerce of other members of the League of Nations. 

8. Finally they consider that there are territories, such as 
South-West Africa and certain of the Islands in the South Pacific, 
which, owing to the sparseness of their population, or their small 
size, or their remoteness from the centres of civilization, or their 
geographical contiguity to the mandatory state, and other cir- 
cumstances, can be best administered under the laws of the manda- 
tory state as integral portions thereof, subject to the safeguards 
above-mentioned in the interests of the indigenous population. 

In every case of mandate, the mandatory state shall render to 
the League of Nations an annual report in reference to the terri- 
tory committed to its charge. 


The resolution was drawn and offered and passed by the 
Council of Ten in English; the subsequent French text of the 
Quai d’Orsay is printed in a later Chapter.+ 

A comparison of the text of this resolution with the language 
of Article 22 of the Covenant shows that all of the resolution 
(except its first two paragraphs) is carried into the Covenant, 
with almost no changes except those made necessary by the dif- 
ferent characters of the two documents. The last two para- 


*See p. 508 sqq. 


MANDATES PDT 


graphs 1 of Article 22 and also the words in its second paragraph 
“and who are willing to accept it,’ and the phrase regarding free- 
dom of conscience, etc., are not in the resolution; but otherwise 
the two papers are as alike as two such papers could well be. 

The last two paragraphs of Article 22 read thus: 


The degree of authority, control, or administration to be exer- 
cised by the Mandatory shall, if not previously agreed upon by the 
Members of the League, be explicitly defined in each case by the 
Council. 

A permanent Commission shall be constituted to receive and 
examine the annual reports of the Mandatories and to advise the 
Council on all matters relating to the observance of the mandates. 


The language of the former of these is derived from clause 6 
of the Smuts Plan,? which, however, was much broader in re- 
gard to the terms of the Mandates, reading as follows: 


That the degree of authority, control, or administration exer- 
cised by the mandatary state shall in each case be laid down by 
the league in a special act or charter, which shall reserve to it 
complete power to ultimate control and supervision, as well as the 
right of appeal to it from the territory or people affected against 
any gross breach of the mandate by the mandatary state. 


In all of Wilson’s Paris drafts the proposal was even more 
sweeping as the following extract * shows: 


The degree of authority, control, or administration to be 
exercised by the mandatory State or agency shall in each case be, 
explicitly defined by the Executive Council in a special Act or 
Charter which shall reserve to the League complete power of super- 
vision, and which shall also reserve to the people of any such terri- 
tory or governmental unit the right of appeal to the League for 
the redress or correction of any breach of the mandate by the 
mandatory State or agency or for the substitution of some other 
State or agency, as mandatory. 


The provision for a Mandates Commission, which in the 
operation of the system has proved to be of the utmost signifi- 


*These paragraphs were added at the Sixth Meeting of the Commission 
on the League of Nations on February 8. See p. 185 sqq. 

* Document 5. 

* The first paragraph of Supplementary Agreement 111 of his Second Paris 
Draft (Document 9) and the second paragraph of the same Agreement in 
the Third Paris Draft (Document 14); the language in the First Paris 
Draft (Document 7) is almost the same. 


I12 THE DRAFTING OF THE COVENANT 


cance, seems to have its origin in clause 7 of the British Draft 
Convention.? 

There were two meetings of the Council of Ten on January 
30, chiefly devoted to the discussion of the Smuts resolution 
which was offered by Lloyd George. The minutes? of these 
meetings in Document 18 will be found to be interesting. The 
minutes of the afternoon meeting, after being circulated, were 
revised. I have reproduced both texts. The earlier draft is 
doubtless more literally what was said. 

I was present at those two meetings and dictated my own ac- 
count of them for my Diary that day as follows: 


The morning session was devoted to the resolution about the 
Colonies, about which there was a good deal of discussion. 

The President first spoke of the publications regarding the 
proceedings of the Conference of the previous day and said that 
these publications in the press, referring especially to the Daily 
Mail, could not continue without making the situation impossible 

~ and requiring him to make a public statement of his own views in 
detail. 

He then went on to discuss the resolution which was prepared 
by the British and which Mr. Lloyd George had offered as repre- 
senting a compromise with the Dominions, obtained with great 
difficulty. The President said that this resolution practically 
assured that there could be no difference of opinion but then 
went on to say that he did not see how any such resolution could 
be adopted until the plans for the League of Nations had been 
drawn and agreed upon. This precipitated a long discussion, in 
the course of which Mr. Lloyd George expressed great disappoint- 
ment and discouragement but modified his resolution by making 
it provisional in character. 

Mr. Hughes for Australia made a reactionary speech, saying 
that the Dominions wanted annexation of the Colonies, and that he 
could yield no more and had cabled home to his Government, so 
that he could not definitely assent to the resolution. 

At the end of the morning session Signor Orlando made a few 
observations regarding the status quo of provisional mandates, 
and Mr. Massey announced that he wanted to be heard, so that 
the matter went over until the afternoon. 

Beginning at the end of the morning session, Mr. Massey 
made a speech in the afternoon following Mr. Hughes, along simi- 
lar lines but accepting definitely the resolution proposed. 


* Quoted at p. 106 sq. : ‘ 
7 A portion of the minutes, relating to other matters, is omitted. 


MANDATES LES 


The President then got up and asked: “Am I to understand 
that Australia and New Zealand have presented an ultimatum to 
this Conference and that if annexation was not conceded 
definitely now, they could not take part in the accord at all?” 
Hughes replied to this by a statement which started off very vigor- 
ously, to the effect that this was as far as Australia could go, but 
ended up in a much milder tone to the effect that everything was 
always subject to negotiation. 

General Botha then made a very attractive and moving speech. 
He referred to the war in which he had fought against the British 
Empire and to the difficulties which had followed it. In these 
difficulties he said he had always tried to be an idealist and to 
secure his ideals as a principle, giving way so far as was necessary 
to secure them. He begged the meeting to take that attitude now. 
He said that he was a supporter of the President; that he believed 
in his ideals and wished to see them carried out, and he hoped that 
they would be carried out and that there would be no difference 
over matters which while perhaps important could be conceded 
without offending the ideals and principles of the President. He 
pleaded that the really great steps forward be taken and that all 
other matters be adjusted. 

This was followed by a conciliatory speech by Mr. Massey, and 
the incident was ended. A slight change in the verbiage of the 
resolution was made at the suggestion of Sir Robert Borden, and 
then M. Clemenceau and M. Pichon stated that France could not 
recognize the absence of the right to raise volunteers in territories 
assigned to her as mandatory, for purposes of defense. President 
Wilson and Mr. Lloyd George explained that this was covered 
by the resolution and that it was intended to provide against the 
training of native troops for purposes of aggression, which France 
had never done, and which M. Clemenceau added, she never in- 
tended to do. The resolution then passed. 


There is one point regarding the resolution of January 30 
which has generally escaped attention. The language of its first 
paragraph is very broad, to the effect that none of the German 
colonies should be restored to Germany. Similarly, the language 
of the third paragraph is equally broad in applying to “these 
colonies and territories,” meaning all of them theretofore men- 
tioned, “the principle that the well being and development of such 
peoples form a sacred trust of civilization” and so on. But when 
the resolution goes on to classify the various peoples in its sixth. 
seventh and eighth paragraphs, it speaks first of “certain com- 
munities formerly belonging to the Turkish Empire” (“A” Man- 
dates); then “other peoples especially those of Central Africa” 


II4 THE DRAFTING OF THE COVENANT 


(“B” Mandates); and finally “territories such as South-West 
Africa and certain of the Islands in the South Pacific” (“C” 
Mandates ). 

Thus the islands in the North Pacific, while doubtless in- 
cluded in some of the general language, are not specifically men- 
tioned at all. These were the islands held by Japan and no others. 
The “South Pacific” meant the Pacific South of the Equator; and — 
Samoa is south of the Equator; and so is Nauru. 

Wilson was thinking of these islands held by Japan and had 
taken notice of the fact that they were not specifically mentioned 
in the resolution. My Diary records a conversation with him 
at the Quai d’Orsay, of which I quote a part as follows: 


After the meeting (on January 30) the President came up to 

me and talked for fifteen or twenty minutes. He said that he 

* spoke of the ultimatum so as to clear up the situation; that Austra- 

lia and New Zealand with 6,000,000 people between them could 

not hold up a conference in which, including China, some twelve 
hundred million people were represented. 

He then spoke of the resolution as not going as far as he 
had hoped, to which I replied that it was in my opinion a great 
achievement and pointed out how far it went in respect of Turkish 
territories and in Central Africa. To this the President assented, 
saying that he had not thought of it as going quite that far. 

He then spoke of the limitation in the resolution to the islands 

,in the South Pacific and asked me to consider this question in 

_respect of the islands in the North Pacific which Japan held. He 
said that these islands lie athwart the path from Hawaii to the 
Philippines and that they were nearer to Hawaii than the Pacific 
coast was, and that they could be fortified and made naval bases by 
Japan; that indeed they were of little use for anything else and 
that we had no naval base except at Guam. 


The discussion at these meetings of January 30 was not di- 
rectly on the question of the distribution of the Mandates; this 
matter was passed on by the Supreme Council on May 7, except 
as to Turkish territories ;1 but no one can read the discussion of 
January 30 without observing that, in part, such a distribution 
had already received the tacit assent of everyone. Indeed the 
claims of the British Dominions had been presented at length to 
the Council of Ten on January 24. 


* The selection of Mandatories for Mesopotamia, Palestine and Syria was 
made by the Allied Supreme Council at San Remo on April 25, 1920. 


MANDATES 115 


So it was assumed that German South-West Africa was to 
be under the control of the Union of South Africa, New Guinea 
under the control of Australia and German Samoa under the 
control of New Zealand; and despite the statement of Lloyd 
George that “the resolution did not deal with the distribution of 
Mandates at all,” it was also admitted in the conversations about 
the black armies in Africa that France was to have certain A fri- 
can Mandates, and these of course could be none other than in 
Togo and the Cameroons. 

The distribution of the Mandates was thus obviously in 
everybody’s mind. Lloyd George, for example, said that the 
British had not the slightest intention of being mandatories of a 
considerable number of territories they now occupied, such as 
Syria and parts of Armenia. He thought the same thing applied 
to Kurdestan and part of the Caucasus, although they had rich 
oil-wells. He did not think they had the slightest intention of 
being mandatories even for the oil-wells of Baku, but somebody 
had to be there to protect the Armenians, and to keep the tribes 
and sects in Lebanon from cutting each others’ throats and at- 
tacking the French or Turks, or whoever else might be there. 

Certainly it was not an unfair implication from this that the 
British would look with favor on a Mandate for Mesopotamia; 
and just after the passage of the resolution of January 30, the 
Belgians were heard by the Council of Ten regarding their claims 
to a portion of East Africa, claims which were subsequently real- 
ized, although not completely settled till 1923. 

Furthermore, there is no doubt that the French contention re- 
garding recruiting of troops in their mandated territories in 
Africa was accepted at the afternoon meeting of the Council of 
Ten on January 30. The language of Clemenceau could hardly 
have been more explicit; in the original unrevised text of the 
minutes, the rather long discussion? ended thus: 


M. Clemenceau said that if he could raise troops, that was all 
he wanted. 

Mr. Lloyd George replied that he had exactly the same power 
as previously. It only prevented any country drilling the natives 
and raising great armies. 

M. Clemenceau said that he did not want to do that. All that 
he wished was that the matter should be made quite plain, and he 
did not want anybody to come and tell him afterwards that he 
had broken away from the agreement. If this clause meant that 


*See Document 18. 


116 THE DRAFTING OF THE COVENANT 


he had a right of raising troops in case of general war, he was 
satisfied. 

Mr. Lloyd George said that so long as M. Clemenceau did not 
train big nigger armies, for the purposes of aggression, that was 
all the clause was intended to guard against. 

M. Clemenceau said that he did not want to do that. He 
therefore understood that Mr. Lloyd George’s interpretation was 
adopted. 

President Wilson said that Mr. Lloyd George’s interpretation 
was consistent with the phraseology. 

M. Clemenceau said that he was quite satisfied. 


The language of the resolution itself, as resulting from the 
amendment of Sir Robert Borden,! was not perhaps perfectly 
clear. It speaks of “defence of territory” which might mean 
simply the mandated territory; but the French view that this 
meant home territory as well was accepted. My own pencil note 
of the discussion, written during the meeting, read as follows: 


Clemenceau and Pichon speak against the clause preventing 
voluntary recruiting in colonies—they want this right in manda- 
taries as well as present colonies. 

This right is admitted by L. G. and W. W. 


But the language of the resolution was not changed; it re- 
mained ‘“‘defence of territory” and so it is in Article 22 of the 
Covenant. Later on? I shall describe the attempt which was 
made by the French to change this language of the Covenant by 
adding to it “and of the territory of the mother country.” That 
attempt did not succeed owing to the opposition of President 
Wilson. 

The result of all this is a rather curious one. The six “B” 
Mandates, all for African territory, are not all alike. Four of 
them, those over British Togo, British Cameroons, Tanganyika 
(British) and Belgian East Africa do not contain the following 
clause,* which is found in the French Mandates for their portions 
of Togo and the Cameroons: 


It is understood, however, that the troops thus raised may, 
in the event of general war, be utilized to repel an attack or for 
defence of the territory outside that subject to the mandate. 

*See p. 110. 


2 See p. 501 sq 
*See League of Nations Official Journal, vol. 3, pp. 858, 875. 


MANDATES II7 


However, the development of the Mandate system under 
Article 22 of the Covenant is beyond the scope of this work. Its 
history forms already a very interesting chapter in present day 
international affairs. The non-ratification of the Treaty of Ver- 
sailles by the United States was followed by negotiations, un- 
necessarily prolonged by the Department of State, as to our rela- 
tions with the mandated territories; but what I may call the 
Mandate status is now completely recognized; the rights of its 
cestuis que trust have become fixed rights, which very likely will, 
from time to time, be increased, as events in Syria and Mesopo- 
tamia and elsewhere have indicated; but certainly they will never 
be diminished. 


CHAPTER X 
THE COVENANT OF FEBRUARY I4 


Tue draft Covenant which was presented to the Plenary 
Session of the Peace Conference on February 14, 1919, was the 
draft which followed from the work of the Commission on the 
League of Nations up to that time. 

During the eleven days from Monday, February 3, to Thurs- 
day, February 13 inclusive, that Commission held ten meetings. 
The Commission met once on every day of this period except two 
(February g and 12) and on the last day (February 13) there 
were two meetings. As the average length of the meetings was 
three hours or so, the Commission was in session altogether for 
say thirty hours. Besides this, there were various sub-commit- 
tee meetings and conferences during this period, all of which I 
shall review. 

As first constituted, the Commission consisted of fifteen mem- 
bers; but, as I have pointed out,! the insistence of the Small 
Powers led to an increase of this number to nineteen. The four 
additional members from Greece, Poland, Roumania and Czecho- 
Slovakia did not attend until the Fourth Meeting of the Com- 
mission, on February 6. 

President Wilson presided at all these ten meetings except 
the last one, which he did not attend and at which Lord Robert 
Cecil was in the chair. 

The minutes in English of the Commission on the League of 
Nations in their final form, including ‘not only these ten meetings 
but all the later meetings as well, will be found as Document 19. 
I emphasize the fact that these are the minutes in their final form. 
There were earlier drafts of the minutes, to some of which I shall 
refer. One of them was a print of the English minutes of the 
first ten meetings, distributed about March 22. The differences 
between this print and the minutes of these meetings in their final 
form were due largely and perhaps wholly to the request of mem- 
bers of the Commission for changes. 

Any one reading these minutes will be struck with the fact 
that some of them report the discussions extensively; others in 
very brief compass. This was in part due to two divergent ten- 

*See p. 84. 
ve 118 


THE COVENANT OF FEBRUARY I4 119 


dencies in the Secretariat which prepared the minutes. Mr. Wil- 
son’s idea was that the minutes should be very summary indeed, 
recording only the action taken. Accordingly, the American 
member of the Secretariat sought to carry out this idea and the 
British member was perfectly willing to go along with him. On 
the other hand, the French wanted to make the minutes more a 
report of the debates and they had their way to some extent. It 
is of course a rule of all international meetings that any delegate 
may require a particular statement made by him embodied in the 
minutes in extenso and instances of this character will be found 
among these minutes. 

The French minutes of these ten meetings are in Document 20 
which contains also the minutes of the three March meetings.? 
While in general they are substantially the same as the English 
minutes, due account being taken of different forms of expression 
in the two languages, there are none the less some discrepancies. 
I shall have more to say about these as I review the happenings 
of each meeting in detail, when I shall also refer to some accounts 
other than the minutes and indeed to some differences between 
the record of the minutes in either English or French and the 
proceedings which were had. 

Minutes, while usually an exact account of action taken, are 
sometimes also a softened account of words spoken; and this is 
not only the case, I may remark, in international meetings under 
the control of diplomats, it is also the case in the American Con- 
gress; every one who is familiar with the facts knows that the 
Congressional Record contains statements that were not made on 
the floor of the Senate or the House, also that it omits statements 
that were made and alters others from their pristine sense, or lack 
of it; and here I am not speaking of insertions under the “leave to 
print” but of those remarks which purport to have been taken 
down by stenographers. 

However, before discussing any of the ten February meet- 
ings of the Commission on the League of Nations, there are 
two contemporary papers to be mentioned which give a general 
account of the sessions. The first of these was written by Mr. 
Whitney H. Shepardson for release in the American newspapers 
of Sunday, February 23. I reproduce it here, for it is as good a 
pen picture of this series of meetings as could be written, and 
Mr. Shepardson was present at almost all of them: 


4In all, thirteen of the fifteen meetings. The minutes of the last two 
meetings I have only in English. 


120 THE DRAFTING OF THE COVENANT 


During the past two weeks, meetings of nineteen men have 
been held in Colonel House’s room on the third floor of the Hotel 
Crillon, the workshop of the American Commission to Negotiate 
Peace. There the Commission on the League of Nations drew up 
its Covenant. 

There is nothing particularly impressive about Room 351. 
It is the kind of reception room that may be found in many a 
French hotel. It is large, high and decorated in the rather elabo- 
rate French style. But whatever its appearance may be while it 
is being used for everyday purposes, it assumed a wholly different 
look during the meetings of the Commission. In the center of 
the room, a big round table covered with red cloth. Around the 
table, nineteen chairs for the nineteen members of the Commis- 
sion. Slightly behind yet scattered through this circle of seats, 
a number of other chairs for French and English translators. In 
the corners, three or four desks, and around the walls occasional 
chairs for any secretaries whom the members might care to bring 
with them. All in all, the table might have been laid for a meet- 
ing of the Cabinet or an American board of directors. 

In this room the Commission met ten times during eleven days. 
They came together in the morning, afternoon or evening at 
hours which would not conflict with the program of the Peace 
Conference itself, whose work envisaged their own, or with that 
of the Supreme War Council, then engaged upon pressing ques- 
tions relating to the renewal of the Armistice. It might be figured 
out that the meetings averaged three hours in length; but it is 
hardly appropriate to speak of averages in this connection. No 
time was set by the Commission for the termination of the day’s 
work. There was a job to be done, and a man’s own time was a 
secondary consideration. Nobody looked at the clock. 

It appears inconceivable that a constitution of the League of 
Nations could have been drawn in thirty hours. It was done, 
but the bald statement is misleading, for it fails to take certain 
things into account. It says nothing, for instance, of a single ex- 
pedient by which the task of the Commission was cut clearly in half. 
Whether one spoke in English or in French, it made no differ- 
ence. As he talked there might be heard the low hum of inter- 
preters translating his remarks word by word and phrase by 
phrase. Every moment of the thirty hours was made to work, and 
no time was lost in the slow but prevailing process of translation. 

It fails likewise to reckon in all the thought which had 
previously been given to the subject. Each one of the statesmen 
who sat around the table had formulated definite ideas on the 
subject, and came to the conferences with an illuminated and active 
mind. Even before America’s entry into the war, President Wil- 
son had stood before the Senate and had advocated the formation 


THE COVENANT OF FEBRUARY 14 121 


of a League of Nations. During the war he had developed his 
plan in long conversations with his closest advisors. After the 
Armistice he had come to Europe, the first President to leave the 
United States, to urge the consideration of the League as the first 
and basic problem of the Peace. Colonel House sat beside him 
at the table. 

Lord Robert Cecil, with his scholarly mind, his practical sense 
and his large vision, was ably seconded in presenting the point of 
view of the British Empire by General Smuts, the great Boer 
leader of other days, a member of the British War Council and 
the author of a widely read pamphlet on the League idea. Léon 
Bourgeois, well advanced in years of service at the Hague Con- 
ferences in the interests of peace, had with him Larnaude, Dean 
of the Faculty of Law at the Paris School of Law. Orlando, 
Italy’s vivid prime minister and an eminent jurist as well, had 
Senator Scialoja as his colleague in expressing the mind of the 
Government at Rome; while Baron Makino, Japanese Foreign 
Minister, and Viscount Chinda, her ambassador at London, con- 
tributed the keen and quiet opinion of the Far Eastern country. 

Though these five Powers were each represented by two mem- 
bers on the Commission, its deliberations were net dominated by 
their views. There also sat down to the table Hymans, the Belgian 
Foreign Minister; Senator Pessoa of Brazil; V. K. Wellington 
Koo, China’s Minister at Washington; Kramar, Prime Minister 
of the Czecho-Slovak Republic; Veniselos, Prime Minister of 
Greece; Dmowski, President of the Polish National Committee; 
Jayme Batalha Reis, Portuguese Minister to Petrograd; Dia- 
mandy, Minister Plenipotentiary of Roumania, and Vesnitch, 
Serbian Minister at Paris. They included representatives of the 
Far East, South America, and the oldest and the newest States of 
Europe. This striking group of statesmen, se keenly interested 
that they presented an unbroken record of attendance at the meet- 
ings, contributed to the discussions a force and vision which 
rivalled that of the Greater Powers. 

The meetings were business-like to a degree. The members 
invariably came together on the hour, exchanged a word of greet- 
ing as they made their way to their seats, took the documents of 
the day out of their portfolios, and proceeded with the next article. 
Each of them found on the table before him all new papers upon 
which discussion might depend. Every day, as the Commission 
made progress through the draft, there was laid at each place a 
revised copy indicating just what had been accomplished on the 
day before. If there were amendments to be proposed by any 
member, he saw to it that they were typewritten and distributed 
so that each of his colleagues might examine their merits in 
advance. 


122 THE DRAFTING OF THE COVENANT 


The meetings were marked by extreme simplicity. Diplomatic 
dress has disappeared with the diplomacy of the past. Each man 
wore what was convenient,—dinner-coat, morning-coat or business 
suit—and the business suit prevailed. There was none of that 
sense of the overwhelming significance of the task which is some- 
times the death of decision. They went about the matter in a 
commonplace way. 

There were no orations. There was no spinning out of useless 
technical distinctions. Plain speaking prevailed. From the first 
it was agreed that the meetings should consist of informal inter- 
changes of ideas of which no stenographic report was to be kept. 
In fact, it was not until the third meeting that Secretaries were 
named, and even then with instructions to record only amendments 
proposed, conclusions reached, and a brief analysis of the argu- 
ments in order that the trend of thought might be clear. The men 
wanted to think aloud. Their work was one which called for 
the frankest and freest examinations of all phases of the project. 
They wanted to shake off the reticence which is provoked by the 
presence of the court-stenographer. They gave up the privilege of 
perpetuating their words in order that they might speak with 
absolute freedom. 

President Wilson presided over every meeting except the last. 
He induced discussion where it was needed. He checked it when 
it ran too far or became involved in technicalities. He was sympa- 
thetic toward every view put forward. He was decisive when he 
spoke for the United States. Throughout the meetings he secured 
the delicate balance of practical good sense. At one moment when 
imagination had led the Commission far into the future, a smile 
came over his face as he remarked, “Gentlemen, I have no doubt 
that the next generation will be made up of men as intelligent as 
you or I, and I think we can trust the League to manage its own 
affairs.” And the Commission came back to the thing in hand. 

The first meeting, that of the 3rd of February, was very brief. 
The Commission came together; the President spoke a few words 
and laid before them a draft which they agreed to use as the basis 
of discussion. So day after day the Draft was held up to the 
light and criticized and amplified. On the evening of February 
11th, at the end of the eighth meeting, the first reading was 
completed. 

Though the project emerged unchanged in principle, the draft 
had been altered in many details and there were before the Com- 
mission various proposed amendments and changes in phraseology. 
It was decided to put the Covenant into the hands of a Drafting 
Committee composed of M. Larnaude, Lord Robert Cecil, Veni- 
selos and Vesnitch for a thorough overhauling. 

Late the following evening their work was finished, and 


THE COVENANT OF FEBRUARY I4 123 


the printing press was busy all through the night so that the 
amended draft might be on the table the next morning. In 
addition to the satisfaction of a job well done, the American sol- 
diers who set the type and corrected proof and ran the press will 
treasure a letter of thanks which the President sent them before 
he sailed. The second reading began on Thursday at ten o’clock, 
but by one, only the first seven Articles had been finally adopted. 
Perhaps with the assurance that the 13th could not fail to mark 
another momentous event, the President excused himself and 
left to attend a critical meeting of the Supreme War Council that 
afternoon at the Quai d’Orsay. 

The Commission resumed their work at 3:30 in the afternoon 
under the leadership of Lord Robert Cecil. One by one they took 
up the remaining Articles; one by one they were passed upon. At 
7:48 Lord Robert, sitting low in his chair and holding the lapels 
of his coat, read the Twenty-sixth Article: 


“Amendments to this Covenant will take effect when 
ratified by the States whose representatives compose the 
Executive Council and by three-fourths of the States whose 
representatives compose the Body of Delegates.” 

“Ts there any objection to this Article?’ He waited a 
moment. 

“Tf not, it is adopted. Gentlemen, our work is done. 
The President of the United States will report our conclu- 
sions to a plenary session of the Conference tomorrow.” 

They left the room. 


The other account was written by myself. During the latter 
part of February and the first ten days or so of March, 19109, I 
wrote in Paris a memorandum regarding the Covenant, based on 
my Diary, my recollection and my papers, which gave an account 
of the shaping of the Covenant up to the February 14 draft. 
From this I extract what I called “Some of my Impressions of 
the Meetings as a Whole.” With a few trifling changes and some 
rearrangement, it follows here as then written: 


The discussions were in English and in French. During 
the first few meetings there were oral translations of the speeches, 
but this took considerable time, and subsequently interpreters sat 
behind Delegates who did not understand both languages, and 
translated as the speeches were made. Thus Colonel Bonsal sat 
behind the President and Colonel House and translated the French 
to them. Generally speaking the proceedings were most informal. 
No one rose to speak, although the President was standing during 
his opening address. 


124 THE DRAFTING OF THE COVENANT 


I took some notes generally of the meetings, though not of 
the first meeting, but my notes are of quite a fragmentary 
nature. My duties were of an advisory character, particularly in 
respect of any question of constitutionality, and it was accordingly 
necessary that I should follow the discussions with a care that 
prevented the taking of notes. In any event, the rather informal 
nature of the discussions made the taking of notes not an easy task 
and in some cases it was even quite difficult with the utmost 
care to determine the precise language of an amendment which 
was adopted without dissent, for the language would be read to 
the meeting and agreed to and discussion commenced of another 
Article or of a subsequent part of the same Article before it was 
possible to write down the full language of the amendment. Even 
after the secretariat was appointed there was considerable diffi- 
culty in this regard, although in every case the exact language was 
finally obtained. In one instance I recall I had to inquire of the 
President after the close of the meeting as to precisely his under- 
standing of what had been done, and his understanding as stated 
to me was adopted by the Secretariat as the action of the meet- 
ing, although none of the members of the Secretariat had been 
able to grasp definitely what it was. 

The President and Colonel House always spoke in English, 
although it can hardly be said that Colonel House spoke at all. 
He never addressed the Commission except at the last meeting 
when the President was not in attendance. On one occasion before 
that he made a remark to the President which the President re- 
peated to the Conference, commencing “Colonel House suggests.” 
Colonel House sat next to the President on his left, and next to 
Colonel House were the British Delegation, Lord Robert Cecil 
and General Smuts. Colonel House and also the President con- 
ferred frequently during the meetings with Lord Robert Cecil, and 
sometimes with General Smuts, and indeed the speeches sometimes 
halted during these conferences. 

Lord Robert Cecil spoke usually in English, but sometimes 
in a rather halting French which he himself described as a jargon. 
General Smuts spoke always in English and I think his under- 
standing of French was not complete. 

The Japanese delegates seldom spoke, but always in English. 
I believe that they understood French perfectly, as they never 
required a translation ; but their faces were quite impassive, and my 
belief is perhaps only an assumption. 

While only ten powers were represented, M. Reis, delegate 
from Portugal, sat next to Viscount Chinda. M. Reis was the 
only delegate who used French and English with equal facility, 
speaking sometimes in one language and sometimes in the other, 
and fluently in both. He seemed to me a diplomat of the old 


THE COVENANT OF FEBRUARY I4 125 


school. He was noticeably near-sighted, having to hold papers 
within two or three inches of his eyes in order to read them, 
so that the English text of the Covenant, with its 8 point print, 
was peculiarly unfortunate in his case. 

M. Vesnitch, of Serbia, sat next to M. Reis, sometimes speak- 
ing in an English more fluent than he was disposed to admit. M. 
Vesnitch preferred to speak, and usually did speak, in French. 
His English, while accurate, was not of English structure, and at 
his request I recast the English of some of his proposed amend- 
ments. 

M. Hymans of Belgium spoke and understood English well, 
but in commenting on amendments always spoke in French, which 
he obviously preferred, and in which he understood the shades of 
meaning conveyed by language better than in English. M. 
Hymans took a very active part in the discussions. On one occa- 
sion when debating the representation of the small Powers he said 
that an Executive Council with only two small Powers on it would 
be the creation of an agreement such as would have been made 
by the Congress of Vienna. For this I may say he was very 
courteously reproved by Lord Robert Cecil, who remarked that 
he could not imagine any country to which Belgium preferred to 
submit her case, above Great Britain. 

Mr. Koo, delegate from China, always spoke in English. He 
understood French, and I have heard him speak it a little, though 
I do not know his fluency in the language. However, he never 
used it at the meetings. Mr. Koo made a distinct impression by 
his ability, and on the subject of representation of the small 
Powers made one of the best speeches of the Commission. 

M. Pessoa, delegate from Brazil, spoke only in French. I think 
he understood English imperfectly, if at all. 

Next to M. Pessoa sat the second Italian delegate, Senator 
Scialoja. Scialoja spoke seldom, and always in French. He did 
not, I think, understand English. He impressed me as an intelli- 
gent scholar, and I assumed that his infrequent speech was due to 

the presence of Signor Orlando. 

Between M. Scialoja and Signor Orlando sat the French dele- 
gates, M. Larnaude on the right, and M. Bourgeois, on the left. 
- Neither of these gentlemen speaks English. I think both of 
them read it, and M. Larnaude at least to some extent under- 
stands it. However, the English remarks were interpreted to them. 
M. Larnaude is a lawyer of distinction. His French was a pleas- 
ure to listen to, being elegant and precise, and spoken with great 
clearness. M. Bourgeois spoke more slowly, and with much greater 
prolixity. Both he and M. Larnaude were very tenacious of the 
French view, and frequently they both spoke on the same point, 
and occasionally, I must say, not with entire consistency. 


126 THE DRAFTING OF THE COVENANT 


Signor Orlando sat on the President’s right. He does not 
speak or understand English, and always spoke in French with a 
little hesitation, and with a distinctly Italian accent. His person- 
ality undoubtedly made a deep impression. While speaking with 
a knowledge of the law, his remarks were always clear and to the 
point, and his point of view was always that of practical common- 
sense. President Wilson obviously deferred greatly to Signor 
Orlando’s opinions, and he said openly that he differed with him 
very rarely, and then with hesitation. 

The meetings were greatly dominated by President Wilson. 
The whole tone of the speeches, when differing from his views, 
conveyed the aim of convincing him, which indeed they sometimes 
did. But to his final opinions there was an unmistakable deference, 
with the possible exception, in some cases, of the French delegates. 
This was strikingly shown at the last meeting, at which the Presi- 
dent was not present, when the meeting was practically unanimous 
in favor of omitting the paragraph about religious freedom, and yet 
was unwilling to vote to eliminate it in the absence of the President. 

Lord Robert Cecil had also great influence upon the meetings. 
Not only his views but his manner were obviously those of a states- 
man of long experience. His patience and his willingness to 
listen to argument gave his statements in reply great and even 
convincing weight. 

It may be said from a technical point of view that the pro- 
ceedings of the Commission were really in English. The discus- 
sions of the text were of the English text. While amendments 
were sometimes presented in French, they were always when 
accepted agreed upon in English. So that despite the fact that 
the two languages were on an equality, English was really the 
language of the Commission, so far as its actual work was 
concerned, 

Among my duties was to see that at the beginning of each meet- 
ing the text, both in English and French, of the part of the draft 
agreed upon up to the close of the previous meeting was on the 
table. This task did not begin until the meeting of Tuesday, 
February 4th, when the Commission commenced to consider 
the text by articles; but from that time on it was most laborious. 
In doing this work, however, I paid particular attention to the 
English text, and did not attempt to see whether the French text as 
originally laid before the meeting was correct or not, but simply 
to see that when changes were made, they were made in French. 
This, of course, sometimes required a translation of an English 
amendment. At times I translated it myself; at times the trans- 
lation was done in connection with the work of the Secretariat; 
and at times it was done by one of the clerical staff of Colonel 
House. 


THE COVENANT OF FEBRUARY I4 127 


It will facilitate the necessary detailed account of the progress 
from day to day and the equally necessary references to docu- 
ments if I give here a general outline of the procedure. The 
basic draft before the Commission was the Hurst-Miller Draft, 
which was in twenty-two Articles. After the First Meeting and 
its general discussion, the Commission in the following seven 
meetings took up that draft, Article by Article, amended it to 
some extent textually, adopted other amendments or suggestions 
in principle, but did not as it went along change the numbering 
of the Articles or the arrangement of the draft at all except by 
the transfer of one paragraph from Article 2 to Article 3. How- 
ever, the Commission added two new Articles, numbered 23 and 
24. Then at the close of the Eighth Meeting of the Commission, 
on February 11, the whole work done up to that time was re- 
ferred to a Drafting Committee. 

Accordingly references to Article numbers up to this point 
are very easy to follow; no change had been made. 

As reported back by the Drafting Committee, the Covenant 
contained twenty-seven Articles. Two of these were new and 
there was some rearrangement, so that the numbering of the Ar- 
ticles was changed. The consideration of this Drafting Com- 
mittee text by the Commission at its last two meetings, on Febru- 
ary 13, resulted, among other things, in the elimination of one 
Article, that on religious liberty. Accordingly, the Covenant 
of February 14 contained twenty-six Articles and the numbers 
of some of the later Articles were necessarily again changed. 

If we compare, then, the Covenant of February 14 with the 
Hurst-Miller Draft, we find that one Article of the Hurst-Miller 
Draft (Article 19, on religious liberty) had been dropped; the 
remaining Articles and the Preamble had been more or less 
amended and recast; on the other hand, four new Articles had 
been added, which appear in the Covenant of February 14 as 
Article 9, 22, 24 and 26. 

To facilitate comparison of the texts,! a tabular statement of 
the numbering of the Articles in the two drafts is appended to 
this Chapter.? 

So far as a French text of the Covenant throughout these 
discussions is concerned, it is to be said here that at least prior 
to February 13 no French text in the proper sense of the words 

*For which see Document 10, the Hurst-Miller Draft being Annex 1 to the 
minutes of the First Meeting, and the Covenant of February 14 being the 


Annex to the minutes of the Tenth Meeting. 
*See also Note on the Numbering of the Covenant Articles at p. 469 sqq. 


128 THE DRAFTING OF THE COVENANT 


ever existed; during the first eight meetings of the Commission 
efforts were made to lay before the members, in French as well as 
in English, the result of its work on the text from day to day, 
but these Articles in French were in general! nothing but hasty 
translations of the English text; and throughout the sessions of 
the Commission the tentative character of these translations into 
French was recognized. What the Commission did was to work 
with French translations but without a French text; the basis of 
its discussions was an English text, the Hurst-Miller Draft; and 
while amendments were from time to time offered in French (or 
in both languages) they were, to the extent accepted, incorporated 
in the English text. The text reported by the Drafting Com- 
mittee at the morning meeting on February 13 (Ninth Meeting) 
was an English text,? although it was accompanied by a new 
and revised French version; and the text adopted by the Com- 
mission at its afternoon meeting on February 13 (Tenth Meeting) 
was an English text;* thus throughout the period, such French 
text as existed was a translation of the English. 

Of course, the Report of the Commission on the League of 
Nations to the Peace Conference on February 14 was printed in 
French as well as in English and like the French minutes of the 
Tenth Meeting of the Commission, necessarily contained a French 
text of the Covenant. But I repeat that no French text as a whole, 
or even in part, was ever passed on and accepted as a French text 
at these ten meetings of the Commission on the League of 
Nations. 


*The amended Mandates Article (17 of the Hurst-Miller Draft) is an 
exception. 

* Annex 2 to the minutes of the Ninth Meeting in Document 19. 

* i.e. the Covenant of February 14 which is the Annex to the minutes of 
the Tenth Meeting in Document Io. 


THE COVENANT OF FEBRUARY I4 129 


Comparison of Article Numbers 


COVENANT OF HURST-MILLER 
FEBRUARY I4 DRAFT 
ys\o ats oC OLA ea eee Ree Article 1 
5 (oa Part of 2 
IS rel i eae 

Yah ee Part of 2 

i= ite (on Ui a oe 4 

aA ee Os ae ag geaegr ie 5 

7 ee Cy ena 6 

Re ie Bek hh 8 
9 (New) 

BOM avon abc ten 7 

AAO en een er gn 9 

C2 (See Sato ORAM 10 

BP Me el cca inde II 

AN tee eer Ys oes 12 

Maret tates tts 13 

BOM re ets ae 14 

71046 «SMR eee ge 15 

oh! Riera nee aeige 16 

(OSes ee Bt RN ys 

PANT ges ds Shaka) iy 18 

19 omitted — 

Numbered 22 2 SRS eee 20 
to 27 inclusive | 22 (New) 

as reported 2G ee eS ana a Da 21 
from Drafting | 24 (New) 

Committee BEEP er hie aitcc ate el ceeehae 22 


February 13! | 26 (New) 


*See Annex 2 to the minutes of the Ninth Meeting in Document 1g. 


CHAPTER XI 
FIRST MEETING OF THE COMMISSION 


WHEN I went from my office 1 to attend the First Meeting of 
the Commission on the League of Nations on February 3 at the 
Hotel de Crillon, I supposed that the draft that was to be the basis 
of discussion from the American point of view was the latest or 
Third Paris Draft of President Wilson (Document 14). Accord- 
ingly, I took along with me a sufficient number of the printed 
copies of that draft; I did not have the slightest idea that the 
Hurst-Miller Draft was to be presented and had no copies of it 
with me.? 

Just before the meeting began, Colonel House told me 
that the Hurst-Miller Draft was to be presented as the basis of 
discussion and accordingly I hurried back to my office to obtain 
copies of that draft. In the meantime, the meeting had com- 
menced, President Wilson had taken the Chair and when I re- 
turned had almost concluded his opening remarks. He then 
asked me to distribute the copies of the Hurst-Miller Draft. 

Fifteen delegates, the full number of the Commission at that 
time, were present.® 

The official record of this meeting (see the English and 
French minutes) is an extremely meagre one, doubtless because 
the Commission did not appoint a Secretariat until its Third 
Meeting (February 5). Besides the members of the Commission, 
my Diary indicates that among those present were Mr. Frazier, 
Colonel Bonsal, Colonel Moore, Lord Eustace Percy, Prince di 
Scordia and two Secretaries of the Japanese Delegation. 

I did not take any notes of the meeting at the time; but my 
account of it, written in Paris during the latter part of the month, 
is as follows: 


*In 4, Place de la Concorde. 

* See p. 73 sqq. 

* According to the minutes, the Japanese delegates present at the First Meet- 
ing were Baron Makino and Viscount Chinda. The earlier draft of the 
English minutes as well as the notes of the American Secretariat (see p. 132) 
state (erroneously, I think) that Baron Makino was replaced at that meeting 
by M. Otchiai, 


130 


is 


| 


FIRST MEETING OF THE COMMISSION 


The opening meeting was quite informal; there were no 
official secretaries present; that is, no secretaries of the meeting 
and no secretariat was appointed. The discussion was chiefly 
upon questions of procedure, and the President emphasized the in- 
formal character of the conversations. I remember his saying 
that he wanted to express himself freely and without reserve, so 
that he could change his mind and not be bound by what he had 
said previously. M. Bourgeois wanted a more formal character to 
the meeting and a general discussion of principles, whereas Lord 
Robert Cecil urged that time should not be lost and that discussion 
of general principles was wholly unnecessary. It was finally 
agreed in substance that discussion of general principles could 
take place as far as was necessary for the discussion of the various 
Articles as they were reached, and the only paper before the first 
meeting was the English text of the Hurst-Miller Draft. There was 
no French text then available. The draft in French of the procés- 
verbal of this meeting contains an annex, which is a French trans- 
lation of the Hurst-Miller Draft; this translation was not before 
the meeting on February 3, but is substantially the French text 
that was before the Commission at its subsequent meeting on 
February 4. 

At the first meeting only ten Powers were represented by 
fifteen delegates, that is, two delegates from each of the five Great 
Powers and one for each of the other five Powers. All of these 
were present at the opening of the meeting except the Delegate 
from Portugal, M. Reis, who came in after the President had 
finished his opening speech. 


As mentioned above, there was no French translation of the 
Hurst-Miller Draft before the First Meeting of the Commission. 
However, such a translation appears as Annex I to the French 
minutes of that meeting (see Document 20). This French trans- 
lation of the Hurst-Miller Draft is very imperfect. It was very 
hastily made on the evening of February 3 by various members 
of the American clerical force. As may be seen by comparison 
with the English text, it even omits one whole paragraph, the last 
paragraph of Article 15. The pressure of time prevented any re- 
vision of it prior to the meeting of the next evening. 

Regarding the French and Italian Drafts the English minutes 
of the First Meeting say this: 


Mr. Léon Bourgeois laid before the Commission the French 
proposals relating to the creation of a League of Nations (Annex 
2). Mr. Orlando laid before the Commission an Italian Draft 
Scheme (Annex 3). 


132 THE DRAFTING OF THE COVENANT 


The French minutes, while mentioning the action of M. Bour- 
geois, say nothing about the Italian Draft, although they con- 
tain as Annex III a French translation of that draft, just as the 
English minutes contain as their Annex 3 an English translation. 
This English translation is not wholly accurate and differs in 
some respects from the English translation of the Italian Draft 
which the Italians themselves made at Paris; accordingly, I print 
the Italian proposals as drawn up in Italian as Document at. 

As a matter of fact, however, and despite the minutes, neither 
the French Draft nor the Italian Draft was laid before this First 
Meeting of the Commission. The earlier draft of the French 
minutes which I have makes no mention of either of them, nor 
does the English print of the minutes of the first ten meetings, 
circulated about March 22. There is no doubt that the references 
to the French and Italian Drafts were put into the minutes later 
as a matter of politesse. The only draft before the First Meeting 
of the Commission was the Hurst-Miller Draft in English. 

By far the most complete account available of the First Meet- 
ing on February 3, is in the following notes of the American 
Secretariat, written (I think) by Colonel Moore, and entitled 
“Secretary's Notes of a Conference Held in Colonel House’s 
Rooms at the Hotel Crillon, Paris, on Monday, February 3, 1919, 
at 2:30 p.m., to Draft a Plan for the League of Nations”: 


PRESENT : 
United States of America British Empire 
President Wilson Lord Robert Cecil 
Colonel House Lt. Gen. Rt. Hon. J. C. Smuts 
France Italy 
M. Léon Bourgeois M. Orlando 
M. Larnaude M. Senator Scialoja 
Japan Belgium 
M. Viscount Chinda M. Hymans 
M. Otchiai China 
Brazil Dr. V. K. Wellington Koo 
M. Epitacio Pessoa Portugal 
Serbia M. Jayme Batalha Reis 


M. Vesnitch 


President Wilson urged the great importance of the present 
undertaking, the most difficult thing ever undertaken in interna- 
tional relations. It is intolerable to have a situation presented 
such as existed at the beginning of this war. The great nations 


FIRST MEETING OF THE COMMISSION 133 


did combine against the Central Empires. By so doing they became 
conscious of their common interests. A basis was laid for the 
League of Nations. The League of Nations is no longer optional ; 
it is compulsory. The constitution for it must be thought out by 
the delegates. The League must not only function but must also 
accomplish the objects foreseen for it. 

It has been studied for some time theoretically. The students 
must now address themselves to a practical plan rather than a 
theoretical one. Plans have-been formulated by various nations. 
There is no idea that the nations preparing them will fight for 
their own particular plans. They are all for a common purpose. 
There have been informal conversations which have shown that 
there is accord. At a meeting of the President, Colonel House, 
Lord Robert Cecil and General Smuts it was suggested that the 
various plans be reduced to one simple skeleton. This had been 
done. The President suggested that this draft thus made be 
taken piece by piece and discussed. He urged that the main thing 
was to get something definite right away and then to make 
progress. 

M. Léon Bourgeois thought that it would be difficult to pro- 
ceed until an opportunity had been offered to examine the draft. 

Signor Orlando agreed to discuss the draft that had been 
arrived at in the informal conversations. He further agreed that 
it should be discussed first in a general manner and then spe- 
cifically. He thought that it should be translated into French and 
that the delegates should be allowed twenty-four hours to study it. 

M. Léon Bourgeois agreed with Signor Orlando in regard to 
the discussion of general principles. He then said that if these 
meetings were to be more than formal that a secretariat of the 
commission should be presented. 

Lord Robert Cecil thought that there had been a great deal of 
discussion and that he thought the commission should get down 
to details. He did not favour meeting today to arrange formali- 
ties, tomorrow for general discussion and the next day for details. 
The whole world is watching what is taking place in this com- 
mission. 

President Wilson said that this was called an informal meet- 
ing for two reasons: first, there was not time to organize, second, 
if the meetings are formal with secretaries each day’s proceedings 
will be the subject of discussion. The task of this commission is 
much like that of the Commission that drew up the constitution of 
the United States. The proceedings of that body were withheld 
from the public until its whole work was accomplished. The 
President hopes this commission will likewise proceed in a suffi- 
ciently informal manner to safeguard its processes. It was, there- 
fore, called informal in order to keep its proceedings from general 


134 THE DRAFTING OF THE COVENANT 


discussion. The President feels strongly on this subject. The 
frankest discussion is required. 

M. Hymans wanted a general discussion which need not 
necessarily be formal. He did not ask for delay but believed that 
time should be given to read over the various drafts and study 
them. 

M. Léon Bourgeois stated that he did not mean by an organiza- 
tion of the secretariat that the proceedings of the Commission 
should be given to the public, but that the secretaries should be 
present for the purpose of assisting the commissioners. 

He believed that the consideration of the text of the draft 
article by article should be put over for a day until an opportunity 
had been afforded for studying it. He believed that the discussion 
of it, article by article, should be preceded by a general discussion. 

Lord Robert Cecil saw no advantage in a general discussion 
when no differences of opinion had been shown to exist. 

Signor Orlando thought a general discussion unnecessary be- 
cause the powers have come to an understanding on general prin- 
ciples in the informal conferences. He thought that the Com- 
mission could pass to a discussion of the articles. 

M. Hymans suggested that without having a general discussion 
if any member wished to make a general declaration of principles 
he should be permitted to do so. 

M. Vesnitch raised two questions: first, as to the representa- 
tion of the small nations in the League of Nations, and, second, 
as to whether the organization should be called the “Society of 
Nations” or the “League of Nations.” He thought that the word 
“League” implied force. 

Dr. Wellington Koo wished to know the feeling of the com- 
mission as to furnishing the nations not represented with copies of 
the plans discussed. 

President Wilson objected to this on the grounds that it would 
lead to publicity. 

Lord Robert Cecil called attention to the fact that M. Ves- 
nitch’s discussion on the representation of the smaller nations 
might well have been arrived at under the detailed discussion of 
Article 3 of the draft rather than under the general discussion of 
principles. 

President Wilson stated that the question of representation of 
the small nations was one of the most delicate ones to be dealt 
with. In case of war the great nations would have the greater 
burden in upholding any member of the League who might be 
attacked. Of course, the smaller nations would also be interested 
but would not be called upon as heavily as the greater nations. 

Signor Orlando suggested taking up the subject raised by M. 
Vesnitch as to a name. He thought that the word “League” was 


FIRST MEETING OF THE COMMISSION 135 


already associated with the project. He also thought that the 
word “League” had in it the idea of something binding and stated 
that he preferred it to the word “Society.” 

M. Léon Bourgeois preferred the word “Society” for the 
reason that historically speaking the word “League” brings with 
it the idea of strife. Leagues have always been formed with the 
idea of an enemy before one. He thought that the idea of a society 
meant that the organization was not against anyone. 

M. Jayme Batalha Reis suggested calling the organization a 
“Society of States” rather than of nations. 

Lord Robert Cecil thought that the difference between the 
words “Nations” and “States” was a very small one. 

He asked what suggestion should be given to the Press about 
the meeting. 

President Wilson suggested the following: “We met to com- 
pare views as to how to proceed and decide upon a procedure which 
would advance the matter.” 

M. Léon Bourgeois went into a discussion as to the order in 
which nations should be admitted into the League. He thought 
that the Allied Nations should be admitted first and later the neu- 
tral nations. ... After the enemy nations have complied with 
all the terms which will be required of them by the Treaty of 
Peace they could be considered as free nations and might be 
admitted. 

M. Hymans and M. Jayme Batalha Reis argued that more 
than twenty-four hours’ time should be allowed in order to permit 
the delegates to read over the various plans and study them. 

Signor Orlando urged the necessity of hurrying. 

M. Léon Bourgeois asked time to have the plans translated, to 
study them and to consult with his government. 

President Wilson stated that if the delegates consulted with 
their governments they would not arrive anywhere. There is no 
use consulting one’s government about each particular point. The 
duty of the delegates is to form a plan and to present it to their 
governments, 

The meeting adjourned to meet at 8:30 p. m. February 4th at 
the same place. 

The following communiqué was issued to the press: 

The Commission met to compare views as to procedure and 
to arrive at a method of procedure which would facilitate 
progress. 

It was agreed that an accord in principle had been reached 
by the resolution previously passed by the Conference, and 
that discussion should proceed accordingly at the next meeting, 
which will be held at the Hotel Crillon tomorrow evening at 
8 o’clock. 


136 THE DRAFTING OF THE COVENANT 


It will be seen from these notes that the discussion at the first 
meeting was quite general, relating chiefly to procedure. This 
could hardly have been otherwise. The Hurst-Miller Draft 
which Wilson submitted to the meeting had been printed only 
the previous day and most of those present had never seen it be- 
fore. Very naturally, Signor Orlando “thought that it should be 
translated into French and that the delegates should be allowed 
twenty-four hours to study it.” None the less the meeting had 
a very definite result, which was that the draft before it should 
be taken up for a first reading, Article by Article, and this was 
the procedure followed during subsequent meetings. 


CHAPTER XII 
SECOND MEETING OF THE COMMISSION 


ACCORDINGLY, such examination, Article by Article, com- 
menced at the Second Meeting of the Commission which was held 
on the next evening, February 4, when the Preamble and Articles 
I and 2 were adopted with rather unimportant amendments. 

The change in the Preamble was merely the transposition of 
some of the words. In Article 1, the phrase regarding the Coun- 
cil “representing the States more immediately concerned in the 
matters under discussion” was stricken out at the suggestion of 
Wilson; and in Article 2, at his suggestion, it was provided that 
the Assembly should meet not only as occasion required but also 
“at stated intervals” ; and three amendments of the British to this 
Article were also passed.t_ These were in the nature of drafting 
amendments; but one of them incidentally and perhaps inadver- 
tently struck out any limitation on the number of representatives 
(two, in the Hurst-Miller Draft) which a Member of the League 
might send to the Assembly. This question was to come up 
again.? 

The resulting text of the Preamble and the first two Articles 
of the draft is an Annex to the English minutes of the Second 
Meeting. 

The discussion which then commenced of Article 3 involved 
the extremely important question of the composition of the 
Council and the representation of the Small Powers thereon. The 
debate on this point was very animated and it became clear that 
there could not be agreement on a Council composed of the Great 
Powers only, Cecil’s plan, which the Hurst-Miller Draft con- 
tained. Almost every one preferred the scheme of all of Presi- 
dent Wilson’s Paris drafts, which provided for a Council on 
which the representatives of the Small Powers would be one less 
in number than those of the Great Powers, a scheme which 
Wilson had taken from General Smuts’ proposals. The insist- 

‘For these textually, see the English minutes of the Second Meeting in 


Document 19. 
* See pp. 226, 274, 275. 


137 


138 THE DRAFTING OF THE COVENANT 


ence of the Small Powers on this point was too urgent to be dis- 
regarded. As Cecil finally said, there was such opposition to 
his proposal that the Article would have to be redrafted. 

The influence of the Small Powers was also seen at this meet- 
ing by their bringing about the admission of four additional 
members * of the Commission, making it a body of nineteen in- 
stead of fifteen delegates. The question went to a vote, as the 
French minutes (not the English) say; but the vote was a rather 
informal one, ‘‘a vote of nine,’ as the notes of the American 
Secretariat call it,? meaning the affirmative only. 

Another important agreement reached at the meeting was 
that the name of the new organization should be “League of 
Nations” in English and “Société des Nations” in French. The 
question of the official language of the Covenant was mentioned 
and left in the air, as a matter for the Conference.® 

This Second Meeting of the Commission (February 4) was a 
rather long one; it lasted till about 11:30 and commenced, ac- 
cording to my records and the notes of the American Secretariat, 
at 8 o'clock, although the minutes say 8:30; and while no Secre- 
tariat of the Commission had yet been appointed, various. secre- 
taries were present taking notes; Wilson remarked during the 
meeting that amendments were being noted. 

The official record of this Second Meeting in Documents 19 
and 20 does little more than set forth its results. The debates are 
of much more interest than such an outline and I have three ac- 
counts of them, the first of which is these notes of my own 
written at the meeting: 


Received British amendments. 
The British amendments to Preamble adopted. 
The Preamble is accepted provisionally, with a reserve as to 
its language after consideration of the Articles by M. Bourgeois. 
Some discussion as to “League”, “Society”, “Nations”, 
“States” by Brazil, France, Italy. 
It was agreed to use 
League of Nations in English. 
Société des Nations in French. 


*Greece, Poland, Roumania and Czecho-Slovakia. 

* See p. 144. % 

* Thus the minutes put it. My notes say nothing on the point. According 
to the notes of the American Secretariat (see p. 142) the question asked by 
Reis was a very general one that might have related to the official language 
of the Covenant or of the League or both. The French notes (see p. 149) 
are clearly wrong as to the question, which certainly had nothing to do with 
the discussions of the Commission. 


SECOND MEETING OF THE COMMISSION 139 


Belgium asked that four Small Powers (Poland, Czecho- 
Slovakia, Roumania, Greece) be admitted, additional to those 
admitted. 

The President suggested this would be inadvisable. 

M. Bourgeois asked for a Secretariat. 

M. Larnaude spoke of procés-verbaux and of procedure. 

President suggested informal conversations and after they 
were finished formal sittings to record decisions. 

Bourgeois makes all reserves. 

Reserves are to be noted in writing. 

Belgium presents claims of four Powers to be represented. 

The President again objects. 

Lord Robert Cecil supports the President’s views. 

The discussion proceeds generally between President, Hymans 
and Cecil. 

Then Bourgeois supports Hymans. 

The President says it should be put to a vote. 

Vesnitch thinks the increased number will not impair ( ?) 
the work. 

He thinks the four Powers should be added. 

Portugal agrees. 

It was agreed to admit the four Powers and the President will 
convey the message to the Conference. 


DISCUSSION OF ARTICLE I 


Hymans, Lord Robert Cecil, President Wilson. 

Bourgeois discussed the representation of the States. 

President moves to strike out: “Representing the States more 
immediately concerned in the matters under discussion. 

This agreed to nem. con. 


DISCUSSION OF ARTICLE II 


Ist paragraph: 
M. Bourgeois thinks they should meet periodically. 
President Wilson suggests to add “at stated intervals and” 
after the word “held” in the first line. 
Orlando Hymans 
; Larnaude Scialoja 
First paragraph passed—not formally. 
2nd paragraph: 
Ist. British amendment proposed. 
Scialoja Vesnitch Orlando 
Adopted. 
2nd. British amendment proposed and adopted—Cecil. 
3rd. British amendment proposed and adopted—Cecil. 


140 THE DRAFTING OF THE COVENANT 


The transfer of the last paragraph of Article 1 to Article m1 
as proposed by the British was not mentioned. 
Percy’s note to me said: “Cecil forgot it.” 


ARTICLE III 


General statement by President Wilson. 

The argument is in favor of the great Powers on the Executive 
Council. 

M. Vesnitch speaks. 

He says the credit of the League of Nations must be that of 
the great Powers. 

Rothschild as a citizen. 

The League of Nations is an ideal as well as a practical thing. 

Equality of States is a principle of international law. 

The French and Italian projects have taken into account the 
small Powers. 

We should give the world the thought that an opportunity has 
come to the great Powers. 

He suggests three to the great Powers and two to the small 
Powers—then the first American plan. 

Lord Robert Cecil: Absolute equality must be set aside, as 
Parliaments would not accept it. 

He refers to the difficulties of voting except by unanimity and 
to the difficulty of choice of smaller Powers. 

Hymans: He argues that the small Powers will not accept 
this plan and argues for equality of right. 

Koo: Does not object to the standing representation of the 
Great Powers. 

He thinks there should be representation on the Executive 
Council of the small Powers. He favors the first American plan. 

Pessoa, for Brazil: Thinks that the first American plan should 
be adopted. 

Reis, Portugal: He is against the idea of Bourgeois plan, 
as the great Powers must be represented. He supports the first 
American plan. 

Bourgeois: He speaks of the reign of law—droit—as a future 
member of the Society of Nations—not as a great Power. 

He ends by supporting the first American plan. 

Orlando: He is in sympathy with the small Powers. 

But why is Belgium defended if some other small Power is 
there? 

In questions of droit, all Powers are equal. 

The real question is the one of voting. 

Cecil: He objects to the proposal for the minority repre- 
sentation—agrees to the lack of danger if the voting is unanimous. 

A new project should be drafted. 


SECOND MEETING OF THE COMMISSION I4I 


Wilson: A redraft will be attempted on the lines of the 
five great Powers and other Powers elected by the small Powers 
or by all Powers. 

Suggests meetings every evening at 8:30. 

Adjourned. 


A fuller account of this Second Meeting of February 4 is in 
the notes of the American Secretariat, which were doubtless 
written by Mr. Shepardson and which, omitting the repetition of 
the names of those present,! were as follows: 


President Wilson suggested that the simplest way to proceed 
was to take up each paragraph of the draft, a copy of which was 
before each of the members of the Commission, and discuss it. He 
asked if there was any objection to taking up the Preamble. It was 
as follows: 


“Tn order to secure international peace and security by the 
acceptance of obligations not to resort to the use of armed 
force, by the prescription of open, just, and honorable relations 
between nations, by the firm establishment of the understanding 
of international law as the actual rule of conduct among gov- 
ernments, and by the maintenance of justice and a scrupulous 
respect for all treaty obligations in the dealings of organized 
peoples with one another, and in order to promote interna- 
tional co-operation, the Powers signatory to this Covenant 
adopt this constitution of the League of Nations.” 


Lord Robert Cecil said it might be preferable to postpone the 
consideration of the Preamble until the end of the Commission’s 
deliberations. In any case it is suggested that the words “And in 
order to promote international co-operation” should be transferred 
to the beginning of the Preamble as follows: “In order to pro- 
mote international co-operation and to secure international peace” 
etc. 

He said that he would not press the matter if anyone objected. 

M. Léon Bourgeois suggested examining the Articles before 
taking up the examination of the Preamble. 

President Wilson asked whether M. Bourgeois appreciated the 
fact that the adoption of the Articles and of the Preamble at this 
state of the proceedings was only provisional. 

M. Pessoa preferred calling the organization “League of 
States” or “Union of States” rather than “League of Nations.” 


*See the American Secretariat notes for February 3 at p. 132. The names 
here were identical, including M. Otchiai for the Japanese, although the minutes 
say Baron Makino. 


142 THE DRAFTING OF THE COVENANT 


Lord Robert Cecil said that he understood M. Pess6a’s prin- 
ciple to be that he believed that the organization should be called 
the “League” or “Union of States” rather than of Nations. 

M. Larnaude said that he understood that the word “Nations” 
was employed in the sense of “States.” He approved of M. 
Pess6a’s idea to use the word “Union” rather than “League” or 
“Society.” 

President Wilson stated that there was an objection to the use 
of the word “Union” as it would indicate that the Commission 
was going further than it really was going. “League of Nations” 
is the name to which every one has become accustomed. If it 
is altered the people will be led to think that something new is 
being adopted. 

M. Bourgeois thanked the President for using the word 
“Society” in his address to the Senate yesterday. 

President Wilson said that he was using the word “Society” — 
for a French audience, it having been understood that “Society” 
would be used in French and “League” in English. 

M. Reis asked what the official language would be. 

President Wilson said that this had not yet been decided. If 
there was any difference in significance in French and English it 
would be decided by the “League of Nations.” 

M. Hymans asked whether it would not be a good idea to have 
a secretary to note the amendments. 

President Wilson stated that this was being done. 

M. Hymans raised the point as to whether or not four addi- 
tional members should be added to the Commission. 

President Wilson replied that the five great Powers had asked 
that this point be referred to this Commission for its decision which 
was to be communicated back to them. His own idea was that 
the larger the Commission was made the slower the work would 
proceed. Inasmuch as it was the intention to call in neutrals and 
small powers as progress was made, he thought this matter would 
care for itself. It is not as though the Commission was settling 
the fate of any nation. It is settling the fate of all. Hence he 
saw no point in admitting four other powers. 

M. Bourgeois desired that a vote be taken on the subject. 

Lord Robert Cecil stated that the Commission was perfectly 
well constituted whether the other four powers were added or not. 

M. Bourgeois did not understand whether this was a Com- 
mission regularly constituted or whether it was a certain number 
of men chosen by their governments to exchange ideas. 

M. Larnaude explained the way in which the Commission to 
assess damages was organized. He stated that there was a secre- 
tary general to produce a proceés-verbal. 

President Wilson showed that the Commission for assessing 


SECOND MEETING OF THE COMMISSION 143 


damages was dealing with a different matter; that its proceedings 
were more like those of a court. He stated that this Commis- 
sion’s proceedings would be incumbered by a secretariat. 

M. Bourgeois urged for a secretariat. 

M. Larnaude said that it was necessary to have a procés-verbal. 

President Wilson opposed the idea. He stated that he wished 
to keep his mind wide open, so that he could say the opposite of 
what he had said before if he saw fit. 

Signor Orlando said that this was a Committee for study. 

President Wilson suggested holding informal conversations 
until the document should be in shape and then having formal 
conversation to adopt it. 

M. Hymans explained this to M. Bourgeois and M. Larnaude 
who agreed. 

Lord Robert Cecil hoped that this would not mean that there 
should be two sets of discussions. 

President Wilson said that the formal conversations would 
simply be for the purpose of adopting the convention. 

Signor Orlando said that he understood that where there was 
an agreement nothing would be said but where there might be a 
disagreement this would appear in the formal report of the conver- 
sations. 

M. Léon Bourgeois did not see how any agreement could be 
reached unless all the guarantees of discussion are held by record- 
ing the conversations. 

Signor Scialoja suggested as a compromise that the text be 
adopted and if there were any objections they should be noted. 

President Wilson recalled the discussion to the problem in 
regard to the admission of the four other members of the Com- 
mission. 

M. Hymans urged that Roumania, Greece, Poland and the 
Czecho-Slovaks be admitted. 

President Wilson showed that these were mostly new nationali- 
ties and that it would be more natural to draw in older nations 
than the new ones. He said that he was a friend of the Czecho- 
Slovaks and Poles, but that he thought it better not to involve them. 

Lord Robert Cecil said that the object of this Commission is 
to draw the best draft for a League of Nations so that no nation 
is favored. When it is drafted, the plan is to be submitted to 
the whole Peace Conference. The question involved was whether 
nineteen Commissioners are better qualified to draft this plan 
than fifteen. 

M. Hymans seemed to think that it would be more fair to 
have the smaller nations represented. 

M. Léon Bourgeois favored admitting the four extra nations. 


144 THE DRAFTING OF THE COVENANT 


M. Vesnitch thought that it would be a good thing to admit them 
as it would give them a very good impression. 

M. Reis agreed. 

Lord Robert Cecil hoped that this would not involve going back 
on what had already been done. 

It was stated that it would not. 

President Wilson called for a vote. 

By a vote of nine it was agreed to report back to the Conference 
of the five powers that this Commission would take in the repre- 
sentatives of the four other powers. 

President Wilson then proceeded to explain Article 1 of this 
draft and asked for any comments. 


“The action of the High Contracting Parties under the 
terms of this Covenant shall be effected through the instru- 
mentality of meetings of Delegates representing the H. C. P., 
of meetings at more frequent intervals of an Executive Council 
representing the States more immediately concerned in the mat- 
ters under discussion, and of a permanent international 
Secretariat to be established at the capital of the League.” 


M. Bourgeois raised an objection to the Executive Council 
being composed of States more immediately concerned in the mat- 
ters under discussion. He said that in the plan submitted, the 
Executive Council would not be sufficiently permanent. 

President Wilson suggested striking out the words “represent- 
ing the States more immediately concerned in the matters under 
discussion.” 

President Wilson then proceeded to the consideration of 
Article 11, Paragraph One, which is as follows: 


“Meetings of the Body of Delegates shall be held from 
time to time as occasion may require for the purpose of deal- 
ing with matters within the sphere of action of the League.” 


He asked for any amendments to Paragraph One. 

M. Léon Bourgeois argued for having fixed meetings of the 
Board of Delegates. 

President Wilson showed that it was purposed to give the 
League certain important and continuous functions; that the 
members would consist of diplomats of the capital chosen as the 
seat of the League. These men would be in constant touch. He 
would not like to see the Delegates go home and work up some- 
thing to discuss between meetings. The more formal and con- 
tinuous the organization be made, the better. 


SECOND MEETING OF THE COMMISSION 145 


M. Léon Bourgeois said that there was not such a great differ- 
ence between his views and the President’s, but that he thought 
that the members of the League, whoever they might be, should 
have some regular times for meeting. 

President Wilson suggested amending the Article so as to read 
“Meetings of the Body of Delegates shall be held at stated intervals 
and from time to time as occasion may require,” etc. 

Signor Orlando called attention to the fact that this was a 
permanent Council that could meet when it wished to. 

President Wilson said that it was most important that it 
should meet when it wished to. 

M. Larnaude said that this was an institution which must have 
periodical meetings if it is to be effective. 

Lord Robert Cecil saw no objection to having fixed meetings, 
but thought that the intervals should be long. 

President Wilson believed that the intervals should not be 
stated. 

Lord Robert Cecil agreed to this. 

President Wilson read Paragraph Two, Article 11 and Para- 
graph Three of Article 11: 


“Meetings of the Body of Delegates shall be held at the 
capital of the League or at such other place as may be found 
convenient and shall consist of not more than two representa- 
tives of each of the H. C. P. 

“An Ambassador or Minister of one of the H. C. P. shall 
be competent to act as its representative.” 


Lord Robert Cecil suggested that for the words “not more 
than two representatives” down to the end of the third paragraph 
substitute the words “the ambassadors or ministers of the High 
Contracting Parties at... unless other representatives are 
specially appointed for this purpose.” 

After the words “Body of Delegates” in the fourth paragraph 
of Article 11, insert in each case the words “or the Executive 
Council.” In consequence this paragraph should be transferred to 
Article 111 as the fourth paragraph of that Article. 

For the words “those present” at the end of the same para- 
graph, substitute the words “the States represented.” He also 
suggested striking out paragraph three entirely. 

President Wilson thought that it would be a mistake to have 
a body of special representatives. 

Signor Scialoja, backed by Signor Orlando, thought it neces- 
sary that every member of the League should always have its 
representatives present. 

The Commission passed to the discussion of Paragraph Four 
of Article 11, which reads as follows: 


146 THE DRAFTING OF THE COVENANT 


“All matters of procedure at meetings of the Body of 
Delegates, including the appointment of committees to in- 
vestigate particular matters, shall be regulated by the Body of 
Delegates and may be decided by a majority of those present 
at the meetings.” 


Lord Robert Cecil suggested adding the words “and the Ex- 
ecutive Council” after the words “by the Body of Delegates,” 
the purpose of this being to allow the Executive Council to 
decide its own matters of procedure. He also suggested changing 
the phrase “and may be decided by a majority of those present 
at the meeting” to “and may be decided by a majority of the 
States present at the meeting.” He said that the word “those” 
instead of “the States” appeared to have been a slip. 

President Wilson stated that the commission had now come 
to the question as to how the Executive Council should be con- 
stituted. He showed that the chief physical burdens of the League 
will fall on the great powers whether these burdens are military 
or economic. He said that the adoption of the League will depend 
upon whether it can be done without making the powers too uneasy. 
It is desirable to make the plan acceptable that the great powers 
should be in the Executive Council. Then it should be considered 
what other elements, if any, there should be to it. The general 
idea is that the Executive Council will consist of those other 
powers whose interests are affected. The scheme is to have the 
Executive Council consist of the interested parties. The great 
powers are always interested. He called attention to the fact 
that it was allowed to any party interested to draw the matter away 
from the Executive Council back into the group of delegates where 
no group of powers can impose their will. 

M. Vesnitch spoke for giving the smaller parties the oppor- 
tunity of being represented in the Executive Council. This idea 
was provided for in the first American plan, and in the Italian 
plan. 

President Wilson said that the difficulty of making a satis- 
factory choice from among the smaller powers led to the elimina- 
tion of this plan. 

Lord Robert Cecil said that the drafters of the plan had 
started with the idea that the Council should be small. The prob- 
lem was therefore how it should be constituted. If M. Vesnitch’s 
idea that all the powers are equal were adopted the Council would 
have to be elected by all the members of the League. This might 
lead to some of the greater powers being voted down by the smaller 
powers. Such a scheme would never be acceptable to the greater 
powers. 


SECOND MEETING OF THE COMMISSION 147 


A second objection is that at present it is planned that the 
Council shall act by unanimity. If the number be increased the 
element of voting will be introduced. This might lead to having a 
greater power dragged along by the smaller powers. The plan as 
presented goes as far as possible because the matters in discussion 
may be brought finally into the full body of delegates. He ad- 
mitted that much was to be said for the idea of the equality of 
the powers but did not see how a plan for it could be worked out. 

M. Vesnitch stated that if the article is retained the smaller 
powers would be dissatisfied. 

M. Hymans said that he would go further than M. Vesnitch 
and would say that the smaller powers would not accept the 
scheme as it exists. He admitted the need of a council which 
should be small and be able to act quickly, but he said that there 
was something even more important which was that the Council 
must inspire confidence. There will be a danger unless the smaller 
powers are represented. If a small power had difficulty with a 
great power it would be at a disadvantage. He preferred the 
former American plan. 

He criticized paragraph 2 which provided that invitations will 
be sent to any power whose interests are directly affected on the 
ground that he did not understand who was to judge when the 
interests were affected. 

President Wilson asked him what system he preferred. 

M. Hymans replied that he preferred the French or American 
system. 

Dr. V. K. Wellington Koo ! did not entirely indorse the views 
of M. Vesnitch and M. Hymans. He did not object to the stand- 
ing representation of the great powers, but he did ask for the rep- 
resentation of the smaller powers. He said that what the Com- 
mission is now trying to do is to draw up a League of Nations 
that will operate successfully and that the smaller nations must 
not be made to feel that there is a gulf between the great powers 
and the smaller ones. It is impossible to get a world-wide opinion 
unless the small nations are heard. He preferred the American 
plan. 

M. Pessoa objected to the scheme on the ground that it is not 
a League of Nations because only the five great powers are repre- 
sented. He also approved of the first American plan. 

M. Reis also preferred the first American plan with the ex- 
ception that he did not like the classification of the smaller powers 
into two groups. 

President Wilson said that this was not essential. 

M. Léon Bourgeois feared that if too much power is given to 


* Cf. the text of Koo’s speech at p. I51I sq. 


148 THE DRAFTING OF THE COVENANT 


the great powers that they will act rather for peace than for peace 
founded on justice. 

President Wilson asked whether the French Government would 
be agreeable to the American scheme. 

M. Léon Bourgeois replied that he believed his government 
would agree to any plan that was arrived at unanimously by the 
Commission. 

Signor Orlando said that since the action of the Executive 
Committee must be unanimous he did not understand Lord Robert 
Cecil’s objection to increasing the representation. 

Lord Robert Cecil objected to any proposal which might lead 
to an opposition of interests between the great powers and the 
small powers. He showed that there never had been a division 
between the great powers as such and the small powers as such 
and feared that this opposition of interests might be engendered. 
However, he saw that there was such opposition to his proposal 
that, the Article would have to be redrafted. 

President Wilson stated that he understood that there would 
be no objection to a scheme which comprises membership of the 
five great powers and a minority to be elected by the smaller 
powers. 

M. Hymans agreed to this. 

Lord Robert Cecil asked whether the action of the Council 
should be by unanimity or by a majority vote. 

No decision was reached on this question. 

The meeting adjourned until February 5th at 8:30 P. m. at 
the same place. 


The third account of the Second Meeting of the Commission 
is the French draft proces-verbal or notes of the French Secre- 
tariat which follow. In this account, however, I have included 
Mr. Koo’s speech in the language in which it was delivered, that 
is in the English form in which it was subsequently handed in 
by the Chinese Secretariat with the request that it be incorporated 
verbatim in the minutes :* 


Sur le préambule du Projet de Pacte, M. Bourgeois craint que 
la rédaction ne soit difficile a arréter avant l’examen des Articles. 
Il propose en conséquence de le réserver pour la fin de la discus- 
sion. 

Mr. Wilson indique qu’il s’agit d’une rédaction provisiore, et 
non pas définitive. 

Lord Robert Cecil est d’accord avec M. Bourgeois mais en 
tout cas il croit préférable que les mots “afin d’instaurer la coopéra- 
tion internationale” soient transférés au commencement du pré- 


*A request which was not complied with as it should have been. 


II. 


SECOND MEETING OF THE COMMISSION 149 


ambule, comme suit: “Afin d’instaurer la coopération internationale 
et d’assurer la paix.” 

Cet amendement est adopté provisoirement. 

M. Pess6a indique que le mot “Société des Etats” a un sens 
particulier, tandis que “Ligue” a un caractére consultatif. 

M. Larnaude propose le mot “Union” qui aurait l’avantage 
d’indiquer l'accord existant entre toutes les nations actuellement 
constituées en Etats. Le Président Wilson voit de sérieux incon- 
vénients a employer le mot “Union” et, d’accord avec M. Orlando, 
il préfére les formules consacrées par l’usage. 

M. Bourgeois remercie le Président Wilson d’avoir employé 
les mots “Société des Nations” dans son discours a la Chambre des 
Députés. 

M. Reis pose la question préalable de la langue employée dans 
les discussions de la Commission. 

Le Président propose que les deux langues soient également 
employées. 

M. Bourgeois fait la réserve que c’est & la Conférence qu’il 
appartient de décider et il rappelle le précédent de la Conférence 
de la Haye dont les discussions ont eu lieu en frangais. 

M. Hymans rappelle la demande de représentation de nouvelles 
petites Puissances, au nombre de quatre: Gréce, Pologne, Rou- 
manie, Tchéco-Slovaques. Cette demande a été appuyée par 
M. Jules Cambon a la Conférence et renvoyée a la Commission. 

Apres un échange de vues sur cette question, au cours duquel 
M. Hymans et M. Vesnitch défendent le point de vue de I’adjonc- 
tion de nouvelles Puissances, M. Bourgeois signale que le refus 
d’admettre ces quatre nouveaux membres pourrait causer une 
impression morale regrettable, tandis que leur admission serait 
une solution libérale que serait favorablement admise par opinion 
publique sans qu’elle puisse retarder sensiblement le travail de 
la Commission. 

'A la suite de la discussion, il est convenu que les nouveaux 
membres seront admis a la Commission. Le Président Wilson 
fera parvenir cette décision a la connaissance de la Conférence. 

La Commission aborde la discussion des Articles du Projet. 


ARTICLE I? 
M. Bourgeois demande s’il doit y avoir périodicité ou per- 
manence dans les réunions des Délégués. 
M. Hymans croit que sur ce point le Projet francais est plus 
précis. Il estime qu’il faut une représentation permanente et 
restreinte. 


*See p. 138, note 3. 
* Part of the debate recorded here related to the first paragraph of Article 


150 THE DRAFTING OF THE COVENANT 


M. Wilson tient également a la permanence et estime qu’il ne 
doit pas étre nécessaire de faire des convocations exceptionnelles. 

M. Scialoja rappelle a ce sujet la proposition italienne (article 
m1, dernier alinéa) d’aprés laquelle chaque Conférence pose la 
date de la suivante, ce qui n’empéchera pas d’avoir des Conférences 
extraordinaires. 

M. Bourgeois précise que les réunions doivent avoir lieu a in- 
tervalles périodiques sans fixer la période et en outre toutes les 
fois qu’il y aura lieu, comme J’indique le Projet. 

En conséquence 1’Article 1 est adopté sous réserve de la sup- 
pression des mots “ou seront représentés les Etats plus par- 
ticuliérement intéressés dans les questions en discussion.” 


ARTICLE II 


Lecture est donnée de l’amendement de Lord Robert Cecil. 

Au 2éme alinéa, pour les mots “pas plus de deux représent- 
ants” jusqu’a la fin du 3éme alinéa, substituer les mots “les Am- 
bassadeurs ou les Ministres des H. P. C. a... “a moins que 
d'autres représentants ne soient spécialement nommés a ce propos.” 

M. Scialoja préfére le texte américain qui spécifie que le 
représentant peut étre le représentant diplomatique sans que ce soit 
nécessaire. Il craint que l’amendement de Lord Robert Cecil 
n’ait l’inconvénient de créer des questions personnelles dans le 
cas ou un représentant diplomatique serait exclu. 

Lord Robert Cecil ne croit pas que cet inconvénient se produise 
en pratique a cause de la qualité des représentants diplomatiques 
dont il sera fait choix dans cette ville. 

Apres une intervention de Signor Orlando, l’amendement de 
Lord Robert Cecil est adopteé. 

Le deuxiéme amendement est le suivant: Au 4éme alinéa 
apres les mots “des Délégués” (premiére ligne) ajouter les mots 
“ou dans les réunions du Comité Exécutif” et, a la cinquieme ligne, 
apres le mot “Délégués” ajouter les mots “ou du Comité Exécu- 
tif”; finalement, pour les mots “membres présents a l’Assemblée” 
substituer les mots “Etats représentés a la Réunion.” 

Ces amendements sont adoptés sans discussion. 

Sur la demande du Président Wilson, les mots “périodique- 
ment et” sont ajoutés aprés le mot “réuniront” a la premiere ligne 
de l’Article 11. 

Avant d’aborder |’Article 111, Lord Robert Cecil demande que 
soit réservée pour une discussion ultérieure la question de la 
représentation des Dominions. 

Sur l’Article 111, le Président Wilson signale que le point 
critique réside dans la composition du Comité Exécutif. La com- 
position idéale consisterait 4 ce que toutes les Puissances soient 


SECOND MEETING OF THE COMMISSION I51 


représentées mais, pratiquement, cela ne sera pas possible car ce 
sont les Grandes Puissances qui auront toujours le plus de 
pouvoirs, notamment au point de vue économique et financier. En 
principe le role de ces derniéres sera toujours de se joindre aux 
Puissances directement intéressées. 

M. Vesnitch ne trouve pas équitable de donner une telle 
supériorité aux Grandes Puissances, surtout dans une Société des 
Nations qui ne devra pas présenter uniquement des intéréts ma- 
tériels. Au point de vue moral il demande que les intéréts des 
Petites Puissances soient sauvegardés et que celles-ci aient tou- 
jours la possibilité d’étre représentées. Leur représentation 
limitée a des cas spéciaux ne leur donnerait pas une satisfaction 
suffisante parce qu’elles seraient appelées comme parties intér- 
essées et comparaitraient comme devant des juges. 

Lord Robert Cecil insiste sur le fait que le Conseil ne doit pas 
étre trop nombreux; il signale qu’aucun systéme d’élection ne sera 
parfait et ajoute qu’une solution entre les Petites Puissances 
causerait aussi des mécontentements. 

M. Hymans s’associe aux demandes de M. Vesnitch en faveur 
de la représentation des Petites Puissances et ajoute méme que 
celles-ci n’accepteraient pas une solution qui leur serait trés dé- 
favorable. Il rappelle le role historique des Petites Puissances et 
insiste sur l’intérét qu’auront dans bien des cas les Grandes Puis- 
sances a s’associer leur mentalité afin de faire toujours prévaloir 
les idées de Droit. II signale en outre qu’il ne faut pas oublier que 
dans un délai qui peut ne pas étre tres éloigné il faudra compter 
parmi les Grandes Puissances l’Allemagne et peut-étre la Russie. 
Tout en préférant au dernier texte proposé, le systeme de la Com- 
mission Ministérielle francaise, ou le premier projet présenté par 
le Président Wilson, il déclare que son seul désir est de trouver 
une solution équitable. 

Le Président Wilson demande a entendre l’avis des représent- 
ants des autres Petites Puissances. 

Mr. V. K. Wellington Koo said that he had a few observations 
to make. So far as the League of Nations was concerned, no peo- 
ple was more anxious to see it successfully carried out than the 
Chinese. But on this particular question of the composition of 
the Executive Council, there were some serious considerations 
troubling his mind. While he fully endorsed the views of his 
Serbian and Belgian colleagues, in defense of the principle of the 
equality of States, he was also aware of the practical aspects of the 
question, and, for that reason, wished to add a few remarks of 
his own. 

First, he did not wish to object to the permanent representation 
of the so-called Great Powers in the Executive Council, but he 
wished, however, to urge the recognition of the right of the so- 


152 THE DRAFTING OF THE COVENANT 


called secondary powers to representation on the Council. It was 
probably true that the interests of any so-called Great Powers were 
greater than those of any of the so-called secondary powers, it was 
certainly true that no one great power had interests greater than 
the aggregate interests of all the so-called secondary powers of 
whom there were more than fifty. f 

Furthermore, what the Commission was seeking, Mr. Koo 
added, was a League of Nations so organized that it would work 
successfully and smoothly. Caution therefore should be taken not 
to allow a gulf to grow between the so-called great and small 
powers. The secondary powers should not be allowed to feel that 
they were outsiders, so far as the Executive Council was con- 
cerned, and not fully part and parcel of the League. Nor should 
they be allowed to feel that unless they raised trouble or got in 
trouble, they would not be represented in the Executive Council; 
that, in other words, unless they became either aggressive or vic- 
tims of an aggressor, they could not hope to receive an invitation 
from the Council to be present. He was sure that this was not the 
idea in the mind of any of those present. 

In the third place, there were questions upon which Great 
Powers might clash in a division of any two on one side and 
three on the other. In such a case, if the so-called small powers 
were not represented therein, the Council would be deprived of the 
influence of world public opinion and find it difficult to effect a 
settlement of the question. 

On these three grounds, Mr. Koo said that he preferred the 
American plan which allowed representation of the so-called 
secondary powers in the Executive Council. 

M. Reis et M. Pessoa appuient la demande de leurs collégues 
belge, serbe et chinois, toutefois, M. Reis donne ses preférénces 
au premier projet américain. 

M. Bourgeois indique, aprés avoir entendu les représentants 
des Petites Puissances, qu’il ne parle pas comme représentant 
d’une Grande Puissance, mais comme membre futur de la Société 
des Nations; il signale que le projet de la Commission frangaise 
n’a été arrété qu’aprés avoir passé en revue toutes les difficultés 
qui viennent d’étre signalées. Il désire donc lui aussi trouver une 
transaction d’accord avec le premier projet du Président Wilson. 
Ce dont il s’agit avant tout ce n’est pas seulement d’établir la Paix, 
mais de l’établir sur le Droit et en tenant compte du grand role 
joué par plusieurs Petits Etats au cours de la guerre. 

Signor Orlando reconnait qu’une exclusion pourrait étre de 
nature a froisser la dignité des Petites Puissances et qu’en outre 
celles-ci pourront apporter une contribution importante a l’ceuvre 
générale. La question aura d’ailleurs surtout son importance pour 
les votes et elle est visée a l’Article x111 ot il est parlé d’unanimiteé. 


A 


SECOND MEETING OF THE COMMISSION 153 


En raison du danger du veto des minorités et de l’impossibilité 
d’aboutir par des majorités il estime que les décisions devront étre 
rendues a l’unanimité qui a d’ailleurs toujours été obtenue au cours 
des Conférences interalliées pendant la guerre et qui seule donnera 
satisfaction a l’opinion publique sur laquelle devra s’appuyer la 
Société des Nations. 

Il est décidé qu’uné-nouvelle rédaction de l’Article 111 sera 
préparée pour la prochaine séance qui est fixée a demain soir, 8h. 30. 


The Italian Draft (Document 21) was probably before the 
members of the Commission at this Second Meeting on Febru- 
ary 4. According to the French notes of the meeting, Scialoja 
mentioned it during the debate.* 

At this Second Meeting of the Commission the British pre- 
sented a paper of proposed amendments to various Articles, writ- 
ten in English and in French. For this paper see Document 22, 
in which are also my comments on certain of the proposals, which 
were written and delivered to Colonel House the next day, Febru- 
ary 5. As part of this Document will be found also the second 
and third series of British amendments presented at the Fifth 
Meeting of the Commission on February 7. 

The presentation of amendments in this manner was not un- 
usual. It did not mean that the proposals were then brought up 
at the session of the Commission; it was rather what we would 
call a notice of proposed amendments, to be offered at the appro- 
priate time in the discussion of the text. Thus, some of the 
earlier of these amendments proposed in Document 22 came up 
on February 4, others later. 


*See p. 150. 


CHAPTER 23h 
THIRD MEETING OF THE COMMISSION 


As shown above, it had been agreed at the Second Meeting of 
the Commission on February 4 that a new draft of Article 3, re- 
garding the composition of the Council, would be presented. This 
redraft was made the next morning at a conference in Colonel 
House’s offices at which he, Lord Robert Cecil, General Smuts, 
Signor Orlando and Mr. Koo were present, as well as Mr. Hurst 
and myself. At that meeting Colonel House handed me a draft 
which read as follows: 


The Executive Council shall consist of the representatives of 
the United States of America, the British Empire, France, Italy 
and Japan, to whom shall be added as soon as possible, four rep- 
resentatives of the other States Members of the League appointed 
by the Body of Delegates on such principles and in such manner 
as they think fit. 

Meetings of the Council shall be held at least once a year at 
whatever place it shall decide on, or failing any such decision at 
the capital of the League, and any matter within the sphere of 
action of the League or affecting the peace of the world may be 
dealt with at such meetings. 


While this draft of House provided for four Small Powers 
on the Council, the draft agreed upon, which it was understood 
Orlando would present at the meeting of the Commission that 
evening, provided for only two Small Powers on the Council, 
which Cecil preferred. 

The English text of the redraft of Article 3 as agreed on at 
the conference, was as follows: 


The Executive Council shall consist of the representatives of 
the United States of America, the British Empire, France, Italy 
and Japan, together with two representatives of the other States 
members of the League, appointed by the Body of Delegates on 
such principles and in such manner as they think fit. Pending the 
appointment of these two representatives of the other States, rep- 
resentatives Of . .,..\. andi) cates shall be members of the Ex- 
ecutive Council. 


THIRD MEETING OF THE COMMISSION 155 


Meetings of the Council shall be held from time to time as 
occasion may require and at least once a year at whatever place 
may be decided on or, failing any such decision, at the Capital of 
the League, and any matter within the sphere of action of the 
League or affecting the peace of the world may be dealt with at 
such meetings. 

Invitations shall be sent to any power to attend a meeting of 
the Council at which matters directly affecting its interests are 
to be discussed and no decision taken at any meeting will be binding 
on such Power unless so invited. 

All matters of procedure at meetings of the Body of Delegates 
or the Executive Council including the appointment of Committees 
to investigate particular matters shall be regulated by the Body of 
Delegates or the Executive Council and may be decided by a 
majority of the States represented at the meeting. 

The first meeting of the Body of Delegates and of the Execu- 
tive Council shall be summoned by the President of the United 
States. 


At the Third Meeting of the Commission on February 5 the 
foregoing was almost literally the text adopted for Article 3; but 
the number of the Small States to be on the Council was left 
blank, being reserved for further consideration; and the only 
amendment made was that suggested by Bourgeois to change the 
- word “Capital” to “Seat” (French “Siege”’). It will be observed 
that Article 3 as thus accepted included a paragraph (four), 
which was previously the last paragraph of Article 2, transferred 
from that Article. 

An interesting illustration of what I have said about the 
French text during this period may be mentioned in connection 
with this redraft of Article 3. The group of five, a sort of self 
constituted sub-committee, made their redraft of Article 3 not 
only in English but in French and its French text read thus : 


Le Comité Exécutif comprendra les représentants des Etats- 
Unis d’Amérique, de Empire Britannique, de la France, de 
l’Italie et dtu Japon ainsi que deux représentants des autres Etats 
adheérant a la Société, nommés par l’ensemble des Délégués selon 
les principes et de telle maniére qu’ils jugeront convenables. Jus- 
qu’a la nomination de ces deux représentants des autres Etats, les 
représentants de... .. einige vacua. feront partie du Comité 
Exécutif. 

Des réunions du Comité auront lieu de temps a autre lorsqu’il 
sera nécessaire et au moins une fois par an dans tel endroit qui 


156 THE DRAFTING OF THE COVENANT 


pourra étre designé ou, faute d’arriver a une deécision, dans la 
capitale de la Société; a ces réunions pourra étre discutée toute 
question appartenant a la sphére d’action de la Société ou pouvant 
compromettre la paix du monde. 

Des Convocations seront addressées 4 toutes les Puissances 
devant assister a une réunion du Comité a laquelle des questions 
concernant leurs intéréts doivent étre discutées et aucune décision 
prise a une réunion ne liera une Puissance qui n’aurait pas recu 
de convocation pour y assister. 

Toutes questions de procédure lors des Assemblées gén- 
érales des Délégués ou du Comité Exécutif y compris la désigna- 
tion de Comités chargés d’étudier des cas spéciaux, seront déter- 
minées par l’ensemble des Délégués ou par le Comité Exécutif et 
une décision pourra étre prise par la majorité des Etats repré- 
sentés a la réunion. 

La premiére Assemblée générale des Délégués et du Comité 
Exécutif sera convoquée par le Président des Etats-Unis. 


Now any one who compares the English text of this redraft 1 
with the corresponding wording of the Covenant of February 14 
(Articles 3 and 4) will see that it was very little changed; where- 
as the French text of this redraft of Article 3, as set forth above, 
was rewritten as to its language and, I may add, very consider- 
ably improved in the sense that the French became rather French 
French than English French.2 The point is unimportant except 
to show that what all the members of the Commission on the 
League of Nations were thinking of was the English text of the 
Covenant and that the question of the precise wording of a 
French equivalent of this English text was left aside. 

The Third Meeting of the Commission on the evening of 
February 5 continued the discussion of the draft by Articles 
through Article 6. Before the discussion commenced, Wilson, 
as Chairman of the Commission, stated that the recommendation 
for the four additional members of the Commission had been 
accepted by the Conference at the Quai d’Orsay as a matter of 
course and that he would notify the delegations of the Govern- 
ments of Greece, Poland, Roumania and Czecho-Slovakia ac- 
cordingly; and Wilson also yielded to the wishes of the French 
for a Secretariat and proposed by name its members as set forth 
in the notes of Mr. Shepardson, which I quote later. 


*See p. 154 sq. 

7 See the text of Articles 3 and 4 in the Covenant of February 14, which 
is the Annex to the minutes of the Tenth Meeting of the Commission (Docu- 
ment 19, English, and Document 20, French). 


THIRD MEETING OF THE COMMISSION 157 


Following these announcements, Orlando proposed the re- 
draft of Article 3 in the English and French texts above quoted. 

The difference of opinion as to the representation of the 
Small Powers on the Council continued and there were some 
sharp exchanges, particularly between Cecil and Hymans. As 
agreement was not reached, the question was left over for a later 
decision, when the views of the Small Powers were to prevail; 
the Article was passed with the number of Small Powers left 
blank and with the verbal amendment of Bourgeois mentioned 
above. 

Article 4 was passed with some verbal and quite unimportant 
amendments ? after very little debate. One of the changes made 
it clear that the Secretary General (then called Chancellor) was to 
be chosen by the Council. Hymans took occasion to mention the 
claims of Brussels as the Seat of the League. It is worthy of 
mention that no one questioned at all that the expenses of the 
League should be apportioned among its members as in the Uni- 
versal Postal Union, a method which was subsequently found to 
be very unfair and even impossible for some of the smaller States 
and was changed accordingly. 

Article 5, regarding diplomatic immunities, etc., was accepted 
without discussion or change from the Hurst-Miller Draft. 

In the Hurst-Miller Draft, Article 6 read thus: 


Admission to the League of States who are not signatories of 
this Covenant requires the assent of not less than two-thirds of 
the Body of Delegates. 

No State shall be admitted to the League except on condition 
that its military and naval forces and armaments shall conform to 
standards prescribed by the League in respect of it from time to 
time. 


Wilson opened the discussion by proposing to insert the fol- 
lowing words at the beginning of the second paragraph: 


Only self-governing States shall be admitted to membership in 
the League; colonies enjoying full powers of self-government may 
be admitted; but 


The debate took a very wide range. The British brought up 
the question of India; allusion was made to the former system 


*For these textually, see the English minutes of the Third Meeting in 
Document 10. 


158 THE DRAFTING OF THE COVENANT 


of government in Germany, to that of the Philippines and even 
to that of Japan, inducing a retort from the usually silent Baron 
Makino. While Wilson hesitated as to the membership of India 
he did not finally object; no one else seemed to care; and as it 
appeared that India would come into the League as a signatory 
of the Treaty of Versailles and thus be outside the “self-govern- 
ment’ definition in any case, the Article was passed with the 
Wilson amendments. Naturally no one was able to define “self- 
government” with complete accuracy, and the possibilities of a 
formula of definition were left for the future. 

The difficulties of the debate regarding self-government were 
not lessened by the fact that it was conducted in two languages. 
The English-speaking statesmen admitted that it was impossible 
to say just what self-government is; and just how the idea lurk- 
ing in the back-ground of this word or expression was to be 
stated in French was troublesome, as it proved to be later in 
connection with the French text. Some of the speakers men- 
tioned “pays libres’? and “non libres’’ and Bourgeois very aptly 
quoted from the French draft 1 regarding qualifications for mem- 
bership: 


Nations . . . pourvues d’institutions représentatives permet- 
tant de les considérer comme responsables elles-méme des actes 
de leur propre Gouvernement. 


Some of the debate is to be found in the minutes of the Third 
Meeting in Documents 19 and 20, but all the proceedings of the 
evening are very much more fully reported in these notes of Mr. 
Shepardson : 


President Wilson advised the Committee that he had reported 
today at the Quai d’Orsay the recommendations of the Committee 
concerning additional members representing Roumania, Greece, 
Czecho-Slovakia and Poland, and that the Conference had ac- 
cepted the Committee’s recommendation as a matter of course. He 
would undertake to notify the delegations of these Governments 
so that their nominees might be present at the next meeting of the 
Committee. 

He recalled M. Bourgeois’ desire that a Secretariat should be 
appointed and stated that he would be perfectly willing to attend 
to the appointment. There were no objections. A Secretariat 


*See Annex 11 to the French minutes of the First Meeting in Document 20. 


THIRD MEETING OF THE COMMISSION 159 


was named consisting of: M. Ricci Busatti, M. Clauzel, Lord 
Eustace Percy and Mr. Shepardson. 


ARTICLE III 


The attention of the Committee was directed to the redraft 
of Article Three. Copies of both English and French texts were 
distributed. 

Signor Orlando moved its adoption, called attention to the 
provision giving five representatives to the great powers and two 
to the small powers. He stated that questions which affected world 
stability were most likely to arise among the great powers. 

M. Hymans asked indulgence while he read a paraphrase of 
his own. A certain remark of Lord Robert Cecil’s concerning a 
possible rift between the great and small powers had led him to 
consider how this might be avoided. He proposed that the great 
powers should have five and the others should have five. He 
wished to call attention to the fact that the Delegates of the small 
Powers sitting on the Executive Council were elected by the whole 
Body of Delegates. In such an election the great powers would 
have a voice, so that it would not be, as might first appear, a matter 
for the small powers alone. The whole Body of Delegates, recog- 
nizing the high intellectual attainments or high character of certain 
possible candidates of the smaller nations, would have a decided 
influence. He further thought that sooner or later other powers 
might take shape, and be properly described as great powers, and 
if their number became six or seven, so the representation of the 
smaller nations should increase pari passu. Such a plan would 
promote great cordiality in the acceptance of the plan and perform- 
ance under it. 

Lord Robert Cecil asked if it was within his imagination that 
Germany might come in as a great power. To this there was a 
general demurrer. 

M. Larnaude wanted it clearly understood that no implica- 
tions were carried by the use of the terms “great powers” and 
“small powers.” It was only a convenient form of expression for 
dealing with a certain difference in fact. Indeed, he thought that 
the use of the general terms “great” and “small” was inadvisable, 
and that it was proper that the five powers (whom they were 
classing as great) should be specifically named. For the League 
is the outcome of this war. Of course the five powers are not the 
only ones who have made vast contributions of lives and principle. 
Belgium, the first bulwark against German invasion, has gained be- 
cause of this a great place in history. But the matter is not one 
to be discussed in the abstract or on the basis of sentiment; but 
a thing of cold fact; and the fact is that the war was won by 
Great Britain, France, Japan, Italy, and the United States. It is 


160 THE DRAFTING OF THE COVENANT 


essential that the League be formed around these effective powers 
so that at its birth, it shall carry with it the influence and pres- 
tige of the nations that conquered Germany. 

President Wilson called attention to the fact that disagreement 
now centered only around the number of delegates on the Execu- 
tive Council ascribed to “smaller nations.” 

M. Vesnitch: The principal point appears to be resolved; the 
named great powers are to get five members on the Executive 
Council. He himself will not make his acceptance or rejection of 
the Article hang on a question of numbers; but before a vote is 
taken he must express his view that the small nations should be 
accorded four. In the first place, he believed that it would create 
a better impression throughout the world if this were done. In 
the second place, though he made the suggestion with diffidence to 
the great powers, still he was bound to say that he thought it would 
promote better spirit and greater harmony of action. Again, he 
believed that it would make it more attractive for those who will 
be later considering the idea of entering the League of Nations. 

Lord Robert Cecil: Any question of numbers is a hard one to 
decide. It is difficult to say that two is better than five or four 
is better than three. The League which is about to be formed is a 
great experiment, yet one that we are anxious to see succeed. It 
would be more likely to succeed if we attempted too little rather 
than too much. He hoped that there would be nothing final in 
the League as drafted; and sincerely expected that some way 
would be provided for the League to amend its own Constitution. 
In that event, the good parts would subsist and the bad parts die 
away. Assuming this, and urging prudent beginnings, he was 
inclined to fayor a representation of two rather than four. 

M. Hymans: The chief point is to impress the world by the 
fairness of the Covenant. The world of right would be im- 
pressed by this suggested equality. In such a question, the dignity 
of nations (and of his own nation) is at stake. If the present 
ratio were adopted the world would say—five to the great nations 
and two to the small nations as a “beau geste.” He felt that equal- 
ity of representation on the Executive Committee would be pref- 
erable; but he would be satisfied if small nations got four. What 
would the world say if five nations received a total of five delegates 
and twenty remaining nations received a total of two. 

M. Bourgeois spoke in support of M. Larnaude’s remarks. 
The League is founded on and is the outgrowth of the war. Dur- 
ing its course the five nations have made a league of nations after 
a sort; they have fought, actuated by a single idea. Now it is 
important that it be made known to the world that they are creat- 
ing this League under the influence of a single idea. Though the 
influence and importance of the small nations, when aggregated, 


THIRD MEETING OF THE COMMISSION 161 


is considerable, yet the world, actually, is waiting to see what the 
great nations will do. It is therefore important that a clear ma~- 
jority in the Executive Council be accorded to them. Though it 
is not to be disputed that the influence of all the small nations, 
when taken together, is great and imposing, yet as a matter of fact, 
their total population and their total power falls considerably short 
of that of the five Great Powers. 

President Wilson: We are leaving out the consideration of 
the important fact that all matters may be transferred from the 
Executive Council to the Assembly of Delegates. This is a con- 
siderable guarantee of the position of the small powers. 

General Smuts: People will perhaps scrutinize the make-up 
of the Executive Council more closely than any other point. The 
people of the Great Powers, whose interests are, in reality, most 
likely to be affected, will see that they have representatives con- 
stantly sitting. On the other hand, the people of small powers 
will see that whenever a question arises affecting their interests, 
they are to be called in. 

M. Bourgeois: The trouble with that suggestion is that the 
small powers have no vote. They do not even take part in the 
discussion; they are only heard. 

General Smuts: I had assumed that they would vote. 

President Wilson: No, this provision has not the importance 
for the small powers that you attribute to it. They only, as the 
text says, “attend.” They don’t vote. 

General Smuts: Really the point is academic, since the decision 
of the Executive Council must be unanimous. 

President Wilson: It doesn’t so appear. 

Lord Robert Cecil: It is implicit in the article. All inter- 
national decisions must by the nature of things be unanimous. 

General Smuts : My objection is this: suppose two great powers 
are in dispute. If the small powers are represented by four, 
then since the two great cancel each other, the vote will in reality 
be four small against three great, and they can swing the decision. 

Lord Robert Cecil: I should advise going slow on the proposal 
to give the small powers four representatives. Our chief object 
is to make the League a success. The chief need in making the 
League a success, is the support of the Great Powers. It must be 
attractive to them all. Frankly, the small powers will, in all 
likelihood, join anyway. In view of this, I should advise caution 
before we extend the representation of small powers. The article 
ean well await further elaboration, until the League is formed. 
If, for example, the League should be decided upon as containing 
an Executive Council with an equality of members, the great and 
small powers, there would be a real risk of one or two great 
powers holding out. 


162 THE DRAFTING OF THE COVENANT 


M. Hymans: What you propose is nothing else than the Holy 
Alliance. 

M. Vesnitch: At the last Hague Conference, there were forty- 
four states represented. The number after the war will he even 
greater—perhaps fifty. It will certainly look odd to tell the werld 
that we have decided to give five representatives in all to five 
nations and two in all to the remaining forty-five. 1 cannot agree, 
either, with M. Larnaude, that the war has been won by the five 
Great Powers. By this I do not mean to suggest that the five have 
not played the principal part. But I do object to M. Larnaude’s 
assumption that these five are the only nations that fought for the 
right. If the number of four representatives which I suggest for 
the smaller powers be diminished it will certainly create.a most 
unfavorable impression throughout the world at large. As for 
Lord Robert Cecil’s objection, I cannot bring myself seriously 
to believe that Great Britain and her parliament will oppose the 
proportion of five to four. 

Lord Robert Cecil: There seems to be a curious misapprehen- 
sion through all the discussion. The Executive Council is not 
the whole thing. If I were to give an offhand statement as to 
its functions, I would say that it is only the first in order in the 
settlement of disputes, and is chosen as a small group in order to 
arrive at a decision quickly. By the provisions of the text, matters 
arising under Articles 16, 17, 18, and 20 can be referred to the 
Body of Delegates at any time. Thus M. Hymans’ description of 
this Covenant as creating a new Holy Alliance is an exaggeration, 
if not a wholly false description. The real security for the small 
nations must be the sense of justice of the large ones. And as 
for the possibility of a split between great and small, practically 
such a thing will not occur. The question we have to resolve is 
this, what kind of an Executive Council will produce the most 
favorable impression and will facilitate the acceptance of the pro- 
ject and facilitate its adoption by the greatest number of countries. 
Is the chance of injuring the chances of the League greater if we 
have four for the smaller nations or two? 

I venture to suggest that since there is a great and funda- 
mental difference of opinion between us on this subject, that we 
pass the rest of the clause and return later in our deliberations to 
decide exactly what the representation of the smaller states will be. 

President Wilson: Before we do this, however, I should like 
to point out that in a later article the High Contracting Parties 
guarantee the political independence and territorial integrity of 
each State member of the League. There you have a definite 
guarantee given at the outset of the League’s formation. With 
such a provision, agreed to by great and small powers alike, it is 
difficult to conceive of any injustice that could be done to the 


THIRD MEETING OF THE COMMISSION 163 


small powers by having only two representatives on the Executive 
Council. 

If there is no objection, we will consider the Article adopted, 
with a reservation upon the number to represent the small powers. 

M. Bourgeois: I should like to suggest that the word “capital” 
be striken out, and the word “‘siége” substituted (English “seat’’) 
in this Article and throughout the text. 

President Wilson: Before this Article is voted upon, I should 
like only to remark that, though I greatly appreciate the compli- 
ment which is paid my country in the last provision of this Article, 
the provision did not, of course, emanate from the American 
delegation. 

If there is no objection, the Article, with M. Bourgeois’ sug- 
gested change, is adopted. 


ARTICLE IV 


President Wilson read the Article. He suggested that the 
words: “Subject to confirmation by the Executive Council” should 
be added after the first paragraph, so that it would read “The Sec- 
retariat . . . under the control of a Chancellor of the League by 
whom they shall be appointed subject to confirmation by the Ex- 
ecutive Council.” 

M. Vesnitch: It doesn’t seem to appear who is going to appoint 
the Chancellor. 

General Smuts: I should say that the Article carried the im- 
plication that this would be by the Executive Council. 

M. Bourgeois: I agree; it is an administrative matter only. 

President Wilson: It would be better to put it in. If there is 
no objection we will change it to read after “Chancellor”; “chosen 
by the Executive Council, by whom they shall be appointed, subject 
to confirmation by the Executive Council.”. .. I have just been 
handed a note by my legal advisor who tells me that in order to be 
technically correct we must strike out the words after “members” 
in the last clause and substitute the words “of the Universal Postal 
Union of the expenses of the International Bureau of the Uni- 
versal Postal Union.” (These two amendments were accepted.) 

M. Hymans: I note that the seat of the League is not yet 
fixed. Perhaps this is intentionally left open. However, I do 
not wish to let the occasion pass without expressing the great de- 
sire of the Belgian Government and a large number of Belgian 
organizations that Brussels should be the seat of the League. It 
is unnecessary for me to describe to you the merits of the city, or 
to point out the great moral value to be secured by putting the seat 
of the League in the capital of Belgium. It would be a symbolic 
decision. 


164 THE DRAFTING OF THE COVENANT 


President Wilson: While I am sure that the Commission has 
heard M. Hymans’ proposal with great sympathy, it would be 
better to reserve this question until a later time. If there is no 
objection we will consider this Article adopted as amended and 
pass on to Article V. 


ARTICLE V 


This Article was adopted without modification or discussion. 


ARTICLE VI 


President Wilson, after reading the Article, proposed the 
following amendment: to add at the beginning of the second 
paragraph the words “only self-governing States shall be admitted 
to membership in the League; Colonies enjoying self-government 
privileges will be admitted; but no State” .. . ete. 

M. Bourgeois: This Article provides admission by two-thirds 
vote of the Body of Delegates. An important question is raised by 
this provision. It strongly seems to me that in the case of the ad- 
mission of a new State, it should be by unanimous vote. There 
should be no doubt left as to the character of the new member. 
That member should be without reproach. However important it 
may be to introduce the condition of self-government, the moral 
test is the true and final test, and unanimity should be the measure. 

Lord Robert Cecil: “Self-government” is a word which is 
hard to define, and it is hard to judge a country by this standard. 
For example, on paper the Reichstag was a democratic institution ; 
in a few years’ time the Reichstag could have converted Germany 
into a constitutional government in the true sense of the word. 
If it were desirable, it would be a hard thing to fix upon a form 
of words that would exclude Turkey and Bulgaria. The bare use 
of the word “self-governing” is therefore unfortunate. The Presi- 
dent’s amendment admits self-governing colonies; but what of 
the Indian Empire? She mobilized a million men and made a 
valuable contribution to the Allied armies. Part of India is auto- 
cratically governed—yet that part is willingly so governed, and in- 
contestably the great part is democratically administered. The 
British Government has treated India according to her colonial 
program. She has set up an imperial council for India which ap- 
pears to be the thing India needs at the present stage of affairs. 
If the League of Nations were to employ words which would 
arbitrarily exclude India, it would be taken by those people as a 
bitter insult. I am free to tell you that there is a spirit of unrest 
abroad in India of a serious character. The British Government 
is trying just as rapidly as possible to advance India into a self- 
governing colony; and for anything to happen which would ex- 


THIRD MEETING OF THE COMMISSION 165 


clude India would be unfortunate indeed. I would therefore sug- 
gest instead, that at the end of the first paragraph the following 
words be added “and by a like majority the League may impose on 
any States seeking admission such conditions as it may think fit.” 
If this were done, the League might say to some State, you are 
too military; to another you are too despotic, etc. If such a gen- 
eral amendment be made, particular and appropriate conditions 
thereunder may be laid down in each case. 

President Wilson: I have spent twenty years of my life lectur- 
ing on self-governing states, and trying all the time to define one. 
Now whereas I haven’t been able to arrive at a definition, I have 
come to the point where I recognize one when I see it. For ex- 
ample, regardless of how it appeared on paper, no one would have 
looked at the German government before the war, and said that 
the nation was self-governing. We knew that, in point of fact, 
the Reichstag was controlled by the Chancellor, that it was an 
absolute monarchy. On the other hand, some governments are in 
terms less liberal than Germany was, and yet we would agree in 
calling them self-governing. 

We have said that this war was carried on for a vindication of 
democracy. The statement did not create the impulse but it 
brought it to consciousness. So soon as it was stated that the 
war was being waged to make the world safe for democracy, a 
new spirit came into the world. People began to look at the sub- 
stance rather than at the form. They knew that governments de- 
rived their just powers from consent of the governed. I should 
like to point out that nowhere else in the draft is there any recog- 
nition of the principle of democracy. If we are ready to fight for 
this, we should be ready to write it into the covenant. 

For myself, I have a great admiration for India’s perform- 
ance. The spirit which she has shown is fine. Nevertheless, the 
impression of the whole world is that she is not self-governed, 
that the greater part is governed by the laws of Westminster, and 
the lesser part is governed by princes whose power is recognized 
and supported by the British government, within certain limits. 
Therefore, even though it may be hard to exclude India, still we 
ought to recognize that all governments derive their just powers 
from the consent of the governed. 

The moral test which M. Bourgeois demands is of course right, 
but it is hard to define we should have to say “one who has 
not made proper reparations for wrongs committed” etc. Such a 
test might not be too difficult to lay down in one or two marked 
cases. But it seems to me that it would be very hard to define in 
other less clearly marked circumstances. 

Returning to the matter of India, I should like to urge consid- 
eration of this single case. The difficulty in my mind is that if 


166 THE DRAFTING OF THE COVENANT 


India is admitted on any principle, that principle would probably 
extend to the Philippine Islands. Under the definition which I 
have proposed, the Philippines would be excluded. This seems 
right to me. For though it is the intention of the United States to 
grant them political freedom at the earliest practicable date, and 
since they are now satisfied with the stage at which they have 
arrived, still I think it would be unwise to admit them at present. 
. . . L should be sorry not to see some recognition of the principles 
of self-government in the Covenant. 

General Smuts: It seems to me, Mr. President, that the Cove- 
nant itself takes care of the case of India. She would come in 
under the first paragraph, as signatory to the Covenant, and what- 
ever conditions we may lay down with regard to subsequent mem- 
bers would not affect her. 

Lord Robert Cecil: My legal advisor is not here. Do you think, 
Mr. President, that the first paragraph is exclusive of the second? 

President Wilson: It seems so to me as I read the Article. 
The amendment now reads: “Only self-governing states shall be 
admitted to membership in the League. Colonies enjoying full 
powers of self-government may be admitted, but no state .. .” 

M. Léon Bourgeois: What of countries which do not enjoy 
full self-government? The definition is difficult. I should sug- 
gest the wording “Unless the government is responsible to the 
nation.”” Whether the form of the government is republican or 
monarchial makes no difference. The question ought to be, is 
this Government responsible to the people? We are establishing 
not a League of Governments but a League of Nations. 

M. Larnaude: You are raising a difficult question of “droit 
publique.”’ It is the kind of question which will have to be asked 
in each instance. For example, I believe I am right in saying that 
Japan has not a responsible government. Yet there is no intention 
of shutting her out. 

Baron Makino: The Minister is responsible to the Emperor, 
and also to the people. 

M. Orlando: This is an exceedingly hard matter to define. 
You can’t say “parliamentary” very well, because that is not the 
true test, and we may want some nations in the League whose 
government would not come within this class. You can’t say 
“free government” (“pays libres”) because that doesn’t take into 
consideration its external relations. 

M. Bourgeois: I only said a “government responsible to the 
people.” 

President Wilson: In the original American draft it was writ- 
ten “Only states whose governments are based upon the principle 
of popular self-government.” Some such phrase is desirable. I 
think that it is better expressed in the amendment which I have 


THIRD MEETING OF THE COMMISSION 167 


offered. While “self-government” is not susceptible of definition, 
neither is “free.” But we all know when a government is properly 
described by one of these phrases. It is better to take a simple 
expression, and I believe that “self-governing” more nearly ap- 
proximates the idea we want to express. 

M. Larnaude: I once delivered fourteen lectures on “pays 
libres” and “non libres.” Germany is not, or was not, a “pays 
libre.” 

President Wilson: It seems to me that the ideas we are after 
are expressed as accurately as possible in the amendment. 

Lord Robert Cecil: Since President Wilson has expressed the 
hope that India might be a member of the League under this 
reading, and since it is his interpretation, that, irrespective of 
conditions, she would come into the League under the first clause, 
I am in favour of it. 

M. Bourgeois: I am strongly in favour of including a refer- 
ence to “those who have reparations to make.” And those violators 
of law who have acted like Germany ought also to be specifically 
provided for. They cannot be admitted on a par, or under a 
blanket provision covering all states. And this in addition to a 
provision regarding character. 

M. Larnaude: It seems to me very important that the things 
insisted upon by my colleague should be included. 

President Wilson: Even all the states now here associated are 
not regarded by all other states as having good characters. We 
ought not to pass an act of oblivion by putting up standards that 
we have not always lived up to ourselves. As for the wording of 
the Article, I suggest that the Article be considered as provision- 
ally adopted on the understanding that the question of a definitive 
formula on the point we have been discussing should be further 
considered. 

(With this exception the Article was adopted, retaining Presi- 
dent Wilson’s amendment. ) 


CHAPTER XIV 
FOURTH MEETING OF THE COMMISSION 


Tue Fourth Meeting of the Commission, on the evening of 
February 6, was the first at which its four added members were 
present: Veniselos of Greece, Dmowski of Poland, Diamandy 
of Roumania and Kramar of Czecho-Slovakia. The English 
minutes (Document 19) say that at the opening of the session 
Bourgeois mentioned that he might return later to the matter of 
qualifications for membership under Article 6. My own note as 
to this reads thus: 


Articles 1-6 have been adopted with reservation as to members 
in Council and right to return generally. Also reserve as to Article 
6 as suggested by Bourgeois. 


The Fourth Meeting went through and passed with various 
changes six Articles of the Hurst-Miller Draft, namely, 7 to 12 
inclusive. The chief discussion was about Article 7, later the 
famous Article 10 of the Covenant. The account of the dis- 
cussion in the minutes is rather summary. My own notes, written 
as the debate went on, indicate its general character : 


ARTICLE VII 


Cecil suggests as to the extent of the obligation which means 
war if it means anything. 

Wilson thinks the words add little to the implied obligation 
of the whole Covenant. 

Orlando supports the Article. 

Larnaude thinks it imports only a principle. 

Wilson thinks the obligation is central but recognizes its serious 
character. 

Smuts thinks it goes further than anything else in the document. 

Wilson thinks a matter of right can go through the Senate. 
He thinks there must be a provision that we mean business and 
not only discussion. This idea, not necessarily these words, is the 
key to the whole Covenant. 

Vesnitch: He speaks of the psychological and political effect 
of the provision which he supports. 


168 


FOURTH MEETING OF THE COMMISSION 169 


Cecil thinks that things are being put in which cannot be 
carried out literally and in all respects. 

Wilson states the legal question correctly.1 

Orlando speaks in favor of the amendment, 

Larnaude suggests an amendment. 

Wilson suggests an amendment. 

Finally accepted with Wilson’s amendment as modified. 

Add to Article vir: 


In case of any such aggression the Executive Council shall 
advise the plan and the means by which this obligation shall 
be fulfilled. 


I answered directly to Colonel House and President that 
Article vii is constitutional. 


Cecil was opposed to the guarantee and wanted to strike it 
out.2, Wilson and Orlando defended it. Larnaude finally took a 
middle ground. His second proposal is not correctly stated in 
the minutes; it read as follows: 


Les H. P. C. prennent engagement réciproque de respecter 
et de préserver contre toute aggression l’intégrité territoriale et 
Vindépendence politique existante de tous les Etats adhérents a la 
Société, par les moyens et sous les conditions qui sont déter- 
minés par les articles suivants. 


The result was an Article 10 (then 7), which read thus, 
almost its present text, the amendment of the meeting adding 
the second sentence: 


The High Contracting Parties undertake to respect and pre- 
serve as against external aggression the territorial integrity and 
existing political independence of all States members of the 
League. In case of any such aggression, the Executive Council 
shall advise the plan and the means by which this obligation shall 
be fulfilled. 


However, the discussions of this Article led directly to the 
insertion in the Covenant of what is now Article 19, providing 
for recommendation by the Assembly as to revision of treaties, 
the principle of which was suggested by Cecil during this debate. 
The text of Cecil’s proposal is not in the minutes. As shown in 
Document 22, it would have added the following words: 


*As to this remark, see p. 170 
“See as to this the minutes and also Document 22. 


170 THE DRAFTING OF THE COVENANT 


Subject, however, to provision being made by the Body of 
Delegates for the periodic revision of treaties which have become 
obsolete and of International conditions, the continuance of which 
may endanger the Peace of the world. 


I may refer in this connection to Cecil’s remarks to me concern- 
ing his views of the matter on January 21." 

In the debate, as my notes show,” Wilson expressed the 
opinion that the provision could go through the Senate. It is 
easy to look back now and see that he might have gone farther 
in meeting Cecil’s view. 

Another reference to the remarks of President Wilson in the 
debate on this Article is in my comments on the Belgian pro- 
posals of amendments which were circulated at this meeting of 
the Commission and to which I| shall refer later.? These com- 
ments of mine were written after the meeting, but during the 
same night. I mention in them that the President “pointed out 
in his remarks of February 6 (that) the covenants of Article 7 
may in many cases be fulfilled without the necessity of war.” 
It was of this observation that my notes ? say “Wilson states the 
legal question correctly.” 

While I cannot give the language that Wilson used, it is 
appropriate here to say that the very general notion that Article 
10 of the Covenant is a guarantee against invasion is entirely 
erroneous. I call this a “‘very general notion” because it was 
even asserted in the debates of the First Committee of the Fourth 
Assembly. 

It has been very frequently pointed out by careful students 
of the Covenant that its provisions do not go so far as to inhibit 
war in every case. Legally speaking, war in certain circum- 
stances is permissible under the Covenant (Article 15, paragraph 
7); and with a permissible war there could of course be a per- 
missible invasion. On this point, I refer to Oppenheim.* 

At the time of the Fourth Meeting of the Commission on 
February 6, Article 8 was, as it is now, the Disarmament Article. 
One of Wilson’s original proposals was the abolition of con- 
scription (see Document g, Article 4). This he had abandoned, 
as I have previously shown ® (see in this connection Article 4 


*See p. 52 sq. 

* See p. 168 sq. 

* See p. 176 sqq. 

‘International Law, (3rd ed., 1920), vol. i, p. 739. 
° See p. 65. 


FOURTH MEETING OF THE COMMISSION I7I 


of his Third Paris Draft, Document 14). In this respect the 
Hurst-Miller Draft was similar to the draft last mentioned, its 
first paragraph reading thus: 


The High Contracting Parties recognize the principle that 
the maintenance of peace will require the reduction of national 
armaments to the lowest point consistent with domestic safety and 
the enforcement by common action of international obligations; 
and the executive council shall formulate plans for effecting such 
reduction. It shall also enquire into the feasibility of abolishing 
compulsory military service and the substitution therefor of 
forces enrolled upon a voluntary basis and into the naval and mili- 
tary equipment which it is reasonable to maintain. 


But even the allusion to a possible abolition of compulsory 
military service was objected to; and Wilson at once proposed 
to strike out the last sentence of the paragraph above quoted and 
to substitute for it a paragraph taken literally from his Second 
Paris Draft (Document 9), the third paragraph of Article 4 of 
that draft: 


The Executive Council shall also determine for the considera- 
tion and action of the several governments what direct military 
equipment and armament is fair and reasonable in proportion to 
the scale of forces laid down in the programme of disarmament; 
and these limits, when adopted, shall not be exceeded without the 
permission of the Body of Delegates. 


This provision indeed was in all of Wilson’s Paris drafts in 
almost the same language. It was one of the paragraphs left out 
of the Hurst-Miller Draft which Wilson regarded as important, 
and rightly so, I think. He now sought to restore it; the proposal 
was accepted and stayed in the Covenant, though the language is 
somewhat changed in the final text.? 

Wilson’s Paris drafts had contained an agreement against 
the manufacture of munitions by private enterprise. The Hurst- 
Miller Draft had left this out, also, its second paragraph of Arti- 
cle reading thus: 


The High Contracting Parties further agree that there shall be 
full and frank publicity as to all national armaments and military 
or naval programmes. 


* Cf. paragraphs 2 to 4 of Article 8 as it now reads. 


172 THE DRAFTING OF THE COVENANT 


In a milder form, Wilson now succeeded in restoring to the 
Covenant a clause against private manufacture of munitions, so 
that the last paragraph of this Article 8 would read thus :* 


The High Contracting Parties further agree that munitions and 
implements of war should not be manufactured by private enter- 
prise, and direct the Executive Council to advise how this prac- 
tice can be dispensed with; and further agree that there shall be 
full and frank publicity as to all national armaments and military 
or naval programmes. 


I have called this a Wilson amendment, for he proposed it, as 
the minutes state; although my notes on the discussion of this 
Article, which follow, speak of it as having been proposed by 
Cecil : 


ARTICLE VIII 


Wilson speaks of the Article generally and then of private 
munition making which he objects to—proposes amendment. 

Orlando suggests amendment. 

Wilson suggests change. 

Chinda suggests national instead of domestic, 3rd line. 

Wilson speaks as to force France should agree to maintain. 

Wilson’s amendment is to strike out after reduction in 5th 
line and insert. 

National substituted for domestic and accepted. 

Cecil proposes an amendment—accepted and Article vir 
accepted as amended. 


What happened was this: Cecil wrote out and handed to 
Wilson a draft, reading as follows: 


The H. C. P. further agree that munitions and implements 
of war should not be manufactured by private enterprise and 
direct the Executive Council to consider how this practice can be 
dispensed with and further agree 


Wilson changed “consider” to “advise,” as the original draft, 
which is still in my files, shows, and then read the proposal which 
was accepted. 

The only other change made in the Disarmament Article was 
in its first clause, substituting the words “national safety” for 
“domestic safety” on the proposal of the Japanese ;? the change 

*Cf. the last two paragraphs of Article 8 of the present Covenant. 


* Made by, Viscount Chinda, according to my notes above quoted and to 
the French minutes; by Baron Makino according to the English minutes. 


FOURTH MEETING OF THE COMMISSION 173 


is of some significance; certainly ‘national’ is here a word of 
broader import than “domestic.” 

Article 9 of the Hurst-Miller Draft (now Article 11 of the 
Covenant) was passed without change; seemingly there was no 
discussion of it. All that the minutes say is: ‘This Article was 
adopted without amendment” and my notes are limited to the 
one word “Accepted.” Perhaps the significance of the Article 
was not appreciated. Certainly in the working of the League up 
to this time it has been of very great value; and it is of interest 
to recall here that its opening sentence originated in the House 
Draft 1 and was expanded by Wilson in his Washington Draft ;? 
the second paragraph was added by Wilson in his First Draft at 
Paris.? 

The present Article 12 of the Covenant with its agreement to 
submit international disputes either to a tribunal of some sort or 
to the Council of the League and to defer hostilities at least for 
three months until after the resulting decision or recommendation 
was number Io in the Hurst-Miller Draft. In the debates of this 
Fourth Meeting of the Commission there was no dissent from 
the principle of this Article. It was agreed on Cecil’s suggestion 
that a clause should be inserted for a time limit for the decision 
or recommendation ;* the Secretaries were instructed to draft this. 
The English minutes of the discussion of this Article are clear 
as to the action taken: 


M. Bourgeois pointed out that situations might arise in which 
the responsibilities of the members of the League under this 
article might be doubtful as the draft now stood. A note was 
taken of this point for further consideration. The question raised 
by this observation would be considered more carefully in a 
discussion of Article 13. 

Mr. Orlando observed that a good deal of the strength of the 
project was contained in this article, inasmuch as the League of 
Nations should above all else be supported by public opinion. 
Intentionally moderate as it might be, he approved the draft, 
reserving the right in connection with the discussion of Article 13 
to suggest such amendments as might be advisable. 

Lord Robert Cecil pointed out that no time limit was provided 
for within which an award of arbitration or recommendation of 


*See p. 14 sq. and Document 2. 

? See p. 16 sq. and Document 3. 

*See Document 7. 

“A time limit clause was in the British Draft, Chapter m, 1 (b) (Docu- 
ment 10), in Wilson’s Second Paris Draft, Article 5, (Document 9) and in 
the Cecil-Miller Draft, Article 5 (Document 12). 


174 THE DRAFTING OF THE COVENANT 


the Executive Council must be made. It was agreed that the 
Secretaries should be instructed to draft an amendment stipulat- 
ing, in the case of arbitration, an award within a reasonable period, 
and in the case of consideration by the Executive Council, a 
recommendation within six months. 


On the other hand, the minutes above quoted are obscure as 
to the point made by Bourgeois. It would seem that he advo- 
cated a more stringent, perhaps an absolute, agreement against 
war, and the remarks attributed by the minutes to Orlando seem 
to confirm this; certainly my notes of the discussion under this 
Article do, despite their very condensed form: 


ARTICLE 10 

Accepted. 

Note that a limit must be fixed. 

Cecil: A reasonable time to be determined by arbitrators. 
Six months for Executive Council. 

Bourgeois raised the point of no war. 

Cecil opposes the idea as going too far. 


Of course this Article and its effect are very intimately con- 
nected with subsequent Articles; for example, it refers to a recom- 
mendation by the Council; and the legal effect of such a recom- 
mendation is stated in what is now Article 15; so inevitably any 
discussion of the earlier provision at this stage could be only 
preliminary. 

Article 11 of the Hurst-Miller Draft adopted the principle of 
voluntary as distinguished from obligatory arbitration of inter- 
national disputes; in a form considerably expanded it now ap- 
pears as Article 13 of the Covenant. Again the language is 
closely related to subsequent provisions and the Commission ac- 
cepted it with an addition proposed by Cecil. All that the Eng- 
lish minutes say of the discussion is this: 


ARTICLE II 

This article was considered as closely connected with Article 
10. 

Lord Robert Cecil proposed the following new paragraph as 
an amendment : 

“For this purpose the court of arbitration to which the 
case is referred shall be the court agreed on by the parties, or 
stipulated in any convention existing between them.” 


FOURTH MEETING OF THE COMMISSION 175 


Cecil’s proposal was accepted; my notes say merely that Ar- 
ticle 11 was “adopted with British amendment’’; and the amend- 
ment in a slightly different wording became paragraph 3 of 
Article 13 of the Covenant in the Treaty. 

Article 12, the Article for a Permanent Court, now Article 14 
of the Covenant, was accepted by the Commission as written in 
the Hurst-Miller Draft with the addition of two words “when 
established” and with a grammatical amendment to the English 
text, the latter change being to correct “will” by “‘shall’”’; my notes 
say only “adopted with amendment” and the French minutes 
make no mention of any change at all. 

It is worth while to reproduce here the English minutes of 
the discussion : 


ARTICLE 12 


President Wilson’s proposal to substitute the word “shall” 
for the word “will” throughout the article was adopted; likewise 
the addition of the words “when established” after the second 
“shall.” 

Mr. Bourgeois made note of the fact that the draft made no 
mention of the Permanent Court of Arbitration at The Hague, 
established at the Conference of 1907 with the joint approval of 
all the Delegates of the countries represented on the Commission. 
He reminded the Commission of the services rendered by bodies 
established at The Hague, notably the Commission of Inquiry at 
Hull in the Doggerbank incident, and the arbitration in the Casa- 
blanca, Carthage, and Manouba incidents. 

Mr. Batalha Reis expressed his entire agreement with Mr. 
Bourgeois’ observations. 

Note was made of this observation. 

President Wilson added that unquestionably, in the creation 
of a permanent court of international justice, consideration would 
be given to the existence of and the services rendered by the 
Permanent Court of Arbitration at The Hague. 


The remark of Wilson above quoted was prophetic; in Article 
I of the Court Statute are found these words: 


This Court shall be in addition to the Court of Arbitration 
organized by the Conventions of The Hague in 1899 and 1907. 


With this the meeting adjourned, at 11:30 my Diary says. 
However, I had still some hours of work at my office; part of it 


*Meaning the observation of Bourgeois. The previous remark of Reis 
was inserted after the minutes were first written. 


176 THE DRAFTING OF THE COVENANT 


was the consideration of the Belgian amendments which I men- 
tioned above,’ for they were probably to come up at the follow- 
ing meeting. As circulated on February 6 they were as follows: 


Article 13. In the second paragraph for the words: 

“Tf the report is unanimously agreed to by the members” 
substitute the words: 

“Tf the report is agreed to by the majority of the members”. 

Strike out the words: 

“If no such unanimous . . . just and proper,” substitute the 
words: 

“Tf the report is unanimously agreed to by the members of 

the Council others than the parties to the dispute, the H. c. P. 

agree that they will carry out in full good faith the decision 

that has been rendered.” 

Article 14. In the first paragraph, second line, strike out the 
figure x after the word Article, substitute figures vu, x, XI, 
XIII. 


Article 13. Dans le deuxiéme paragraphe remplacer les mots : 

“Si le rapport est approuvé a l’unanimité par les membres” 
par les mots: 

“Si le rapport est approuvé par la majorité des membres.” 
Supprimer le mots: 

“Si ce rapport ne peut . . . appropriées,” y substituer: 

“Si le rapport est voté par l’unanimité des membres autres 

que les parties au conflit, les H. P. c. convennient d’ exécuter 

avec bonne foi la décision qui aura été rendue.” 


Article 14. Dans le premier paragraphe, remplacer aprés le 


mot “Article” (2éme ligne), le chiffre “x” par les chiffres “vu, x, 
Di nb a hc Ra 


These Belgian proposals regarding Article 13 (now 15) 
would not only have given legal effect to a report of a majority of 
the Council regarding a dispute instead of to a unanimous report 
only, but would have greatly increased the legal effect of the re- 
port itself; and regarding Article 14 (now 16) they would have 
very much extended the cases in which the sanctions of that Ar- . 
ticle would be applicable. 

I did not think well of the Belgian amendments and the memo- 
randum which I wrote about them was as follows: 


The first amendment proposed to Article x11r (now 15) 
would make a majority report instead of a unanimous report of 


* See p. 170. 


FOURTH MEETING OF THE COMMISSION 177 


the Executive Council one which would bind the parties not to go 
to war with a Power complying with its recommendations. 

The second amendment proposed to Article x111 would change 
entirely the character of a unanimous report of the Executive 
Council. Not only would it be within the covenant against going 
to war, but it would become a binding decision and would thus be 
a form of compulsory arbitration effective as such when the 
members of the Executive Council were unanimous. 

The amendment proposed to Article xiv (now 16) would 
extend the sanctions of Article xiv to a breach of the covenants 
of Article viz (now 10) Article x1, (now 13) and Article x11, 
(now 15) as well as Article x (now 12). 

The amendment already adopted to Article vi is a valid 
reason against the extension of the sanctions of Article xiv to 
the covenants of Article vit. Furthermore, as the President 
pointed out in his remarks of February 6, the covenants of Article 
VII may in many cases be fulfilled without the necessity of war; 
and it is equally clear that in many cases they might be carried 
out without the necessity of the sanctions of Article xiv. 

Clearly, the sanctions of Article x1v should not be extended 
to the covenants of Article x1, which only provide for the sub- 
mission of disputes to arbitration which the parties recognize as 
suitable for that form of regulation. 

There are several reasons why the covenants of Article x111 
should not be supported by the sanctions of Article x1v. There is 
a covenant in Article x111 not to go to war, but the sanction for 
this covenant is covered by the sanction for the covenants of 
Article x; there are other covenants in Article x111 which should 
not be supported by the sanctions of Article xiv; for instance, 
there is a covenant to “refer the matter to the Executive Council,” 
and a covenant to “communicate to the Chancellor statements of 
their case.” It is clearly not the intention of the agreement that 
the drastic provisions of Article x1v should apply in case of a 
breach of either of these covenants. 


So far as the sanction proposals (then Article 14, now 16) 


were concerned, my views were that they should be softened and 

limited rather than expanded. I discussed the matter with 
Colonel House on the afternoon of February 7 and expressed to 
him my ideas and hesitation about the Article. At his request I 
drew up a suggestion about the text and handed it to him before 
the meeting that evening. The text that I wrote was this: 


Should any of the High Contracting Parties be found by the 
League to have broken or disregarded its covenants under Article 
X, (now 12) it shall be deemed thereby to have committed a hos- 


178 THE DRAFTING OF THE COVENANT 


tile act against all of the other members of the League. In any 
such case, the Executive Council shall advise as to the steps to be 
taken to bring about the severance of all trade and financial rela- 
tions with the covenant-breaking State, and the prevention, so far 
as possible, of all financial, commercial and personal intercourse 
between the nationals of the covenant-breaking State and the 
nationals of any other State, whether a member of the League or 
not. 

The Executive Council in such a case shall also recommend 
what effective military or naval force the members of the League 
shall severally contribute to the armed forces which may be needed 
to protect the covenants of the League. 

The Executive Council shall also advise as to the mutual sup- 
port necessary in any financial and economic measures which are 
taken under this Article, in order to minimize the loss and incon- 
venience resulting therefrom, and shall also advise as to the mutual 
support necessary in resisting any special measures aimed at one 
of The High Contracting Parties by the covenant-breaking State. 


With the suggestion I wrote the following note to Colonel 
House: 


The language of this suggestion as to Article x1v (now 16) 
is based to some extent on the amendment to Article vir (now 
10) made last evening. 

In the Article as now before the Commission the first two 
paragraphs were from the President’s draft, the third from the 
British draft, and in the suggestion a portion of the third para- 
graph is omitted. 


It will be seen from this that my idea was to substitute con- 
sideration by the Council of economic and financial sanctions in 
place of any positive agreements to put them into force. In view 
of the enormous practical difficulties that have been shown to 
exist in any automatic plan of economic sanctions, the idea still 
appears to me to have some merit. Indeed the resolutions of the 
Second Assembly in 1921 regarding Article 16 of the Covenant 
tend in that direction. 


CHAPTER XV 
FIFTH MEETING OF THE COMMISSION 


THE Fifth Meeting of the Commission was held on the eve- 
ning of February 7; Articles 13 to 15 (now 15 to 17) were 
passed with a few changes, subject, however, to a reference to a 
Sub-Committee (composed of Bourgeois, Cecil, Hymans and 
Veniselos) of certain suggestions as to Articles 13 and 15 made 
during the debate. 

The action taken at this Fifth Meeting regarding Article 13 
of the Hurst-Miller Draft (now 15) is set forth as follows in my 
notes : 


ARTICLE XIII 


Read by President. 

Cecil proposes British amendment—at end of first paragraph 
insert, “and the Executive Council may forthwith direct the publi- 
cation thereof.” 

Vesnitch proposes to insert after word “Chancellor,” par. 1, 
line 7, “as promptly as possible.” 

Adopted. 

British amendment adopted. 

Wilson proposes amendment, “and the privilege of the minor- 
ity” after line 10, paragraph 2. 

Adopted. 

Belgium proposes two amendments. Belgian amendments 
not accepted; but a phraseology which will cover the case of a 
defendant who is in possession who does not give up although a 
unanimous vote of the Council is against him is referred to a Com- 
mittee to be appointed. A time limit is to be inserted in paragraph 
3 by the same Committee. 


Thus the amendments voted were not of major importance; 
the real discussion was regarding the Belgian proposals quoted 
above,? and it will be convenient to extract here the debate as 
reported in the English minutes. 


These proposals were discussed at length. Mr. Hymans’ view 
was supported by the French delegates and by Mr. Vesnitch, but 


*See p. 176. 
179 


180 THE DRAFTING OF THE COVENANT 


Lord Robert Cecil raised doubts as to the desirability of giving 
mandatory effect to the decisions of a majority of the Council, 
and President Wilson shared these doubts. Mr. Veniselos in 
agreement with Mr. Bourgeois urged that as regards the second 
amendment proposed by Mr. Hymans the Council should have 
some right to secure the satisfaction of the claims of the injured 
party to a dispute in cases where the Council had unanimously re- 
ported in favour of those claims. He also suggested that as re- 
gards the first amendment proposed by Mr. Hymans some manda- 
tory effect might safely be given to the decisions of a large ma- 
jority of the Council, for instance, a majority of four out of the 
five Great Powers and three out of four small Powers, assuming 
that representatives of four small Powers are included in the 
Council. Finally, Mr. Veniselos pointed out that some time limit 
should be put to the right of either party to a dispute to refer 
the disputes from the Council to the Body of Delegates, and this 
point was generally agreed to by the Commission. 

It was finally decided that a Sub-Committee consisting of Mr. 
Hymans, Mr. Bourgeois, Lord Robert Cecil, and Mr. Veniselos 
should undertake the drafting of amendments to the article in the 
sense of the Commission’s discussion. 


So while the Belgian proposals were not accepted, there was 
some sentiment in favor of giving to a unanimous report of the 
Council very nearly the effect of an arbitral decision. In view 
of other provisions of the Covenant (see Article 12, then Article 
10), this would have been a long step toward obligatory arbitra- 
tion, almost going the whole length in certain cases, if the Coun- 
cil were unanimous. The matter was to come up again. 

Intimately connected with the preceding Article was the Sanc- 
tions Article, now 16, and in the Hurst-Miller Draft 14, the open- 
ing words of which were these: 


Should any of the H. C. P. be found by the League to have 
broken or disregarded its covenants under Article 10, it shall 
thereby ipso facto be deemed to have committed an act of war 
against all the other members of the League, which shall imme- 
diately subject it, etc. 


As the minutes of the debate show, the broad principle of 
sanctions received unanimous assent, for there was no discussion 
at all of the fundamental question. In two regards the opening 
words of the Article above quoted were changed. One of these 
changes was purely verbal;? but the other amendment, proposed 


1Tt substituted “hereby undertake immediately to” for “shall immediately.” 


— 


FIFTH MEETING OF THE COMMISSION 181 


by Cecil, to substitute “break or disregard” for “be found by 
the League to have broken or disregarded,” was of real moment, 
although it passed without comment. 

The question as to what State is the aggressor and how the 
question in a given case is to be answered was again left open. 
Logically, of course, there should be some method of decision, 
and I had so argued. But probably it was wise to leave the 
matter vague and uncertain. Complete and final precision in any 
international document, particularly regarding such a momentous 
issue, is not always desirable. The experiment of the Covenant 
was more likely to work if much was left to the opinion of the 
future. Even in 1924 the complete logic and perfect circle of 
the Protocol of Geneva were in advance of that opinion. 

The Belgian proposals * were further considered; here they 
raised the point as to what breaches of the Covenant sanctions 
should apply. There were some difficulties of language in the 
text as it then stood. Without going into these in detail, I re- 
fer to the wording finally reached, namely, that the sanctions are 
in terms applicable to a “resort to war” in breach of the Covenant 
and to such a breach only. But this change of words was to 
come later and, strictly speaking, did not alter the meaning of 
the Hurst-Miller Draft itself. 

The decision at the time was merely to refer to the Sub- 
Committee the Belgian suggestion, so far as it related to a unani- 
mous report of the Council under Article 13 (now 15). This 
action, however, did not carry Article 14 (the Sanctions Article, 
now 16) to the Sub-Committee, which did not report on it 
at all (see in the minutes the proceedings of the Seventh Meet- 
ing which include the report of that Committee; and also the re- 
marks of Bourgeois, at the beginning of the elaborate note he read 
at the Eighth Meeting). 

Indeed, this reference by the Commission to the Sub-Commit- 
tee was little, if anything, more than a repetition of its previous 
reference under Article 13. The following extract from the Eng- 
lish minutes of the Fifth Meeting shows this very clearly: 


Mr. Hymans raised the point whether Articles 7, 11 and 13 
should not be added to Article 10 in the second line of this Article, 
in order that the sanctions provided in this Article might operate 
equally in respect of the situations contemplated in Articles 7, 10, 
II and 13. 


*See Document 7, under Article 6, and also my comment in Document 22. 
* See p. 176. 


182 THE DRAFTING OF THE COVENANT 


After discussion, it was generally agreed that a reference to 
Article 7 might be ambiguous, and that it was not really necessary 
to provide a sanction, especially by such summary procedure as 
that provided for in Article 14, to enforce the agreement embodied 
in Article 11. It was thought, however, that some sanction might 
perhaps be provided in the case of a unanimous report by the 
Executive Council under Article 13, and this question was likewise 
referred to the Sub-Committee above mentioned. 


As to the Sanctions Article (now 16) my notes are again very 
summary, as follows: 


ARTICLE XIV 

British Amendment Instead of “shall immediately,” “hereby 
undertake immediately,” line 4. 

Adopted. “break or disregard” Adopted. 

Cecil: Treat that practically as a declaration of war. 

Committee is to see what sanctions, if any, are desirable under 
Articles x1 and xIII. 

Only adopted as to x11. 


Article 15 (now 17) relating to non-members of the League, 
another most important Article, was then passed with very slight 
change and no discussion of principle but only of language; 
though now it is obvious that any provisions of the Covenant as to 
non-members, even if limited to the ultimate event of aggression, 
may raise questions of the utmost difficulty and delicacy ; this was 
emphasized in the discussions about the Geneva Protocol and its 
possible application. 

As the minutes show, to the opening phrase of the Article 
regarding an invitation to a non-Member of the League was 
added “upon such conditions as the Executive Council may deem 
just”; and Orlando pointed out that the expression “ad hoc 
Members” was not strictly accurate and the Sub-Committee was 
asked to suggest some other language. The discussion was very 
brief, just before the adjournment of the meeting at 11 P. M., 
and my notes as to the Article are so fragmentary that I repro- 
duce them here only for the sake of completeness : 


ARTICLE XV 


British amendment accepted. 


Non-member—accepts the rules of the League in regard to 
that conflict. 


Cecil Bourgeois Venizelos Hymans 


FIFTH MEETING OF THE COMMISSION 183 


The second and third series of the amendments of the 
British were circulated at this Fifth Meeting of the Commission 
(see Document 22). The third series included proposals of 
two new Articles, one regarding amendments to the Covenant 
and the other regarding the revision of treaties, which did not 
come up for discussion until the Eighth Meeting of the Com- 
mission on February 11. 

Another proposal of momentous possibilities also first came 
up at this time. This was the Japanese “equality” amendment. 
The text of the proposal, which was written both in English 
and in French, was as follows: 


The equality of nations being a basic principle of the League 
of Nations, the High Contracting Parties agree to accord, as soon 
as possible, to all alien nationals of States members of the League 
equal and just treatment in every respect, making no distinction, 
either in law or in fact, on account of their race or nationality. 


L’égalité des nations étant un des principes fondamentaux de 
la Société des Nations, les Hautes Parties Contractantes con- 
viennent d’accorder, le plus tot possible, a tous les étrangers 
nationaux des Etats membres de la Société, un traitement égal et 
juste sous tous les rapports, ne faisant aucune distinction, soit en 
droit soit en fait, a cause de leur race ou nationalité. 


Conversations between House and the Japanese regarding 
their proposal were being held. Two days later, on February 9, 
my Diary records the following : 


Colonel House called me in and talked to me about the Japa- 
nese proposal. While I was discussing it Mr. Balfour came in. 
There was a general discussion of the matter between Colonel 
House and Mr. Balfour. Colonel House handed me a pencil 
memorandum which he showed to Mr. Balfour, commencing with 
the proposition taken from the Declaration of Independence, that 
all men are created equal. Mr. Balfour said that was an eigh- 
teenth century proposition which he did not believe was true. He 
believed that it was true in a certain sense that all men of a par- 
ticular nation were created equal, but not that a man in Central 
Africa was created equal to a European. Colonel House said that 
he did not see how the policy toward the Japanese could be con- 
tinued. The world said that they could not go to Africa; they 
could not go to any white country ; they could not go to China, and 
they could not go to Siberia; and yet they were a growing nation, 


184 THE DRAFTING OF THE COVENANT 


having a country where all the land was tilled; but they had to go 
somewhere. Mr. Balfour said that he had a great deal of sym- 
pathy with this view. 

Colonel House instructed me to draft an amendment and sub- 
mit it to him, and I drafted this amendment and submitted it to 
him later with a letter returning to him the papers which he handed 
me, of which I did not take copies. 


Accordingly I drafted this clause pursuant to the instructions 
of House: 


Recognizing that all men are created equal, the High Con- 
tracting Parties agree that the Executive Council may consider any 
external grievance affecting the nationals of any of the High Con- 
tracting Parties, and may make such recommendations in respect 
thereof as are deemed equitable. 


However, I did not like the idea, and in sending it to House 
I wrote the following letter : 


The trouble with the Japanese proposition is this: 

You presented to them a draft which I think sounds as well 
as anything that can be written. 

This draft was not acceptable because it had, as you appre- 
ciated, no particular legal effect, because it was not intended to 
have any. 

Any draft which had a real effect would, of course, be im- 
possible. 

I have tried my hand at another draft, which is enclosed. I 
do not like it, because while I do not think it binds any country to 
anything, it makes the general subject a matter of international 
cognizance, and I doubt very much if that result is or should be 
acceptable. 

The papers which you handed to me are returned herewith. 


CHAPTER XVI 
SIXTH MEETING OF THE COMMISSION 


At the Sixth Meeting of the Commission, on February 8, four 
more Articles (16-19) were passed. This meeting was held at 
10 :30 in the morning ; it was one of the occasions on which no at- 
tempt was made to lay before the members the text of their work 
up to date, as the meeting the night before had lasted till after 11 
o’clock. 

Article 16 of the Hurst-Miller Draft (now clause (d) of arti- 
cle 23 of the Covenant) entrusted to the League the general 
supervision of the Arms Traffic. The British proposal to add 
the words, “as hereinafter provided’ was withdrawn; but its 
principle was subsequently accepted and now appears in the open- 
ing words of Article 23. 

There was a prolonged discussion regarding Article 17, the 
Mandates Article (now 22). It will be remembered that Hurst 
and myself, for reasons which | have described, had written the 
Article in the form of a short statement of general principles. 
General Smuts offered as a substitute for the Article in the Hurst- 
Miller Draft what was almost literally the most of the text of 
the resolution of the Council of Ten of January 30, of which 
Smuts himself was the original sponsor.?, The form of that reso- 
lution was necessarily somewhat changed and certain of the 
opening phrases were omitted; but generally the language of the 
substitute offered is the language of the resolution. The idea of 
writing into the Covenant the text of that resolution had also 
been the idea of Wilson (see Document 14, his Third Paris Draft, 
Supplementary Agreements I-III); but by the Smuts amend- 
ment two paragraphs were added to the original resolution at 
this time, including the highly important provision for a Manda- 
tory Commission. 

As the decision of January 30 had been taken by the five Great 
Powers, the Commission was bound to accept it, as Wilson 


* See p. 70. 

* See generally Chapter 1x. d ; 

* See in Document 19 Annex 1 to the English minutes of the Sixth Meeting. 
185 


186 THE DRAFTING OF THE COVENANT 


pointed out. However, the list of countries “formerly belonging 
to Turkey” spoken of in the Smuts amendment? as “which in- 
clude Armenia, Kurdestan, Syria, Mesopotamia, Palestine and 
Arabia” was very sensibly omitted, following the remarks of 
Orlando. I may mention here that those remarks seem to be 
more fully set forth in the French minutes of the Sixth Meeting 
(see Document 20) than in the English. In view of subsequent 
developments, any mention of Armenia and Kurdestan as being 
under Mandates would have been highly embarrassing. 

Wilson’s suggestion of added language, to be applicable to 
former Russian territory, met with no support at all and was 
abandoned. 

The accounts in the minutes of the discussion of the Man- 
dates Article are not altogether complete. In some respects they 
are supplemented by my notes, which follow: 


President Wilson suggests addition: 

“The provisions of this article can also be applied in respect 
of other peoples and territories which are not otherwise dis- 
posed of in the Treaty of Peace of which this Covenant forms 
a part, or are not definitely constituted as autonomous states.” 
Smuts proposes British amendment. 

Orlando objects to amendment as interfering with Conference 
and as going into details. 

Amendment to President's amendment ” 

“whose interests and” 
Words stricken from British amendment 
“which . . . Arabia” 

Submitted to sub-committee with instructions to incorporate 
idea. 

Bourgeois amendment in the air. 

Kiao Chow is not deemed as one of the German colonies. 

Discussion then by Japanese as to insertion of word “if.” 

Wilson replied that he did not understand that the meaning 
was different from that with the word “if,” for without “if” there 
would be annexation. 

Japan: We understood that there were conditions of certain 
trade and prohibitions of fortifications and two or three other 
conditions enumerated, and also to give annual reports. I looked 
at it, to speak frankly, as this was the result it had come to. A 
trust under certain conditions. 


*In the French text of the Smuts amendment in Annex 1 to the French 
minutes of the Sixth Meeting (see Document 20) the list of countries does not 
appear. Cf. the French in Document 22. 

® This is quite obscure. 


SIXTH MEETING OF THE COMMISSION 187 


Wilson: If the Power to whom mandate is given embodies ter- 
ritory then there is no mandate. 
Smuts: “If” is stricken out. 


Thus the meeting agreed, as I wrote it down, that ‘‘Kiao 
Chow is not deemed as one of the German colonies.” My recol- . 
lection is that it was Mr. Koo who made the point. The minutes 
say nothing on the matter at all. 

The amendment to the Mandates Article proposed by Bour- 
geois, to which allusion is made in my notes above quoted, es- 
caped the attention of the Secretariat when the first drafts of the 
minutes were prepared, as it there appears in neither the English 
nor the French. Reference to it is found, however, in the final 
minutes; the text of it was this:? 


In accordance with the decisions of the Conference of the 
Allies, the League of Nations considers itself as having assumed 
a moral protectorate over the populations referred to in the treaty 
of peace, which have not yet obtained a complete development. 

The character of this protectorate must differ according to the 
degree of development of the people concerned, the geographical 
situation of their territory, their economic condition and other 
similar circumstances. 

The rules and regulations of this protectorate are determined 
by international conventions. The Council of the League of 
Nations will cause new conventions to be called if it deems them 
necessary for assuring the welfare and the development of the 
populations concerned. 


Conformément aux décisions de la Conférence des Alliés, la 
Société des Nations se considére comme investie de la tutelle 
morale des populations visées dans le traité de paix qui ne sont pas 
encore parvenues a un complet développement. 

Le caractére de cette tutelle doit différer suivant le degré de 
développement des peuples, le situation géographique du territoire, 
ses conditions économiques et toutes autres circonstances ana- 
logues. 

Les régles et les limites de cette tutelle sont déterminées par 
les conventions internationales. Le conseil de la Société des 
Nations provoquera au besoin de nouvelles conventions si elles lui 
paraissent nécessaires pour assurer le bien-étre et le développement 
des populations dont il s’agit. 


*T give the English version as the French proposed it. Cf. the English in 
Annex 2 to the minutes of the Sixth Meeting in Document 19. 


188 THE DRAFTING OF THE COVENANT 


Next to be mentioned is the following remark in the French 
minutes : 


M. Vesnitch (Serbie) propose un amendement tendant a 
faciliter |’émancipation définitive de ces peuples et leur admission 
dans la Société des Nations. 

Lord Robert Cecil (Empire britannique) prie M. Vesnitch 
de ne pas insister sur sa proposition pour des raisons d’opportunité. 


In the English minutes it is given this way: 


Mr. Vesnitch proposed an amendment intended to facilitate 
the complete emancipation of these peoples and their admission 
into the League of Nations. 

Lord Robert Cecil asked Mr. Vesnitch not to insist on his pro- 
posal, for reasons of expediency. 


The text of this Vesnitch amendment, however, is not given 
in the English minutes at all. In the French minutes (in Annex 
I) it appears thus: 


La Commission mandataire pourra aussi, quand elle jugera le 
moment venu, suggérer que |’indépendance d’un peuple, quel qu’il 
soit, puisse étre proclamée et reconnue en vue de son admission 
éventuelle, comme membre de la Société des Nations. 


Now I think that this episode did not take place at the Sixth 
Meeting of the Commission at all. In he first place, the earlier 
drafts of the minutes, English and French, say nothing about it 
and my notes say nothing about it. What seems to me con- 
clusive, however, is that my records do show that at the Sixth 
Meeting on February 8, M. Vesnitch handed me the foregoing 
amendment with another amendment (to Article 11), both 
drafted in French, with the request that I write them in English 
and have them prepared to be laid on the table at the next meet- 
ing (of February 10). Accordingly, I did put them into English, 
the text of his amendment to Article 17 as I wrote it being as 
follows: 


The Mandatory Commission may also, when it shall deem the 
time proper, suggest that the independence of any such people may 
be proclaimed and recognized with a view to the eventual admission 
of such people as a member of the League. 


SIXTH MEETING OF THE COMMISSION 189 


Also, I wrote a memorandum on the two amendments, dated 
February 10, but written on the evening of February 9, which 
read (omitting the foregoing text of the proposal as to Article 
17) as follows: 


M. Vesnitch is to propose two amendments, the English of 
which I helped him to prepare, at his request. 

The first amendment is to Article x1, and proposes to base 
arbitration on the First Convention of The Hague of 1907, relat- 
ing to the Pacific Settlement of International Disputes. 

In my opinion it would be unfortunate to base arbitration upon 
this Convention, particularly as it was accepted with reservation 
by various States, including the United States; while it has been 
useful in some cases, it belongs to a past era. 

The second amendment proposed by M. Vesnitch is proposed 
as an addition to Article xvi, and presents a question of policy 
upon which I do not comment. 

Copies of the two amendments are annexed, the changes pro- 
posed in Article x1 being underscored [italics]. 


PROPOSAL OF M. VESNITCH 


ARTICLE XI 


The High Contracting Parties agree that whenever any dispute 
or difficulty shall arise between them which they recognize to be 
suitable for submission to arbitration and which cannot be satis- 
factorily settled by diplomacy, they will, in accordance with the 
provisions of the Convention of The Hague for the Pacific Settle- 
ment of International Disputes, submit the whole subject matter 
to arbitration, and will carry out in full good faith any award or 
decision that may be rendered. 


PROPOSITION DE M. VESNITCH 


ARTICLE XI 


Les Hautes Parties Contractantes conviennent que, lorsqu’il 
s’élévera entre elles un différend ou une difficulté, susceptible 
d’étre soumis a l’arbitrage et ne pouvant étre réglé par la diplo- 
matie, conformément a la Convention de la Haye relative a la 
solution pacifique des conflits internationaux, elles soumettront la 
question pleine et entiére a l’arbitrage et s’en tiendront de bonne 
foi au jugement rendu ou a la décision qui sera prise. 


Furthermore, my notes of the meeting of February 10 (the 
Seventh Meeting) end up this way: 


Ig0 THE DRAFTING OF THE COVENANT 


xvii of Vesnitch disapproved. 
x1 of Vesnitch referred to second reading. 


So it seems to me clear that action on this amendment of 
Vesnitch to Article 17 took place at the Seventh Meeting on 
February 10 and not at the Sixth Meeting on February 8. 

Finally there was one other incident relating to the Mandates 
Article at this Sixth Meeting; this was a rather embarrassing 
discussion about a single word in the text of the Smuts Amend- 
ment. The English minutes record it this way: 


After an exchange of views with Baron Makino, it was agreed 
to strike out the word “if” in the English text of the last para- 
graph of sub-article (b). 


The third classification of territories under the resolution of 
the Council of Ten of January 30,1 mentioning South-West 
Africa and certain islands in the South Pacific, as now phrased 
in the sixth paragraph of Article 22 of the Covenant, says that 
these territories “can be best administered under the laws of the 
Mandatory as integral portions of its territory” (“C’ Man- 
dates, as now termed). In the proposal of Smuts, as made to 
the meeting, this language read :? “‘as if integral portions there- 
of.” Baron Makino, for the Japanese, brought up the point re- 
garding the insertion of this word “if.” My notes above quoted * 
show something about the discussion. The Japanese were clearly 
right. The basis of the Smuts amendment was, as Wilson had 
pointed out, that the matter had been agreed to not only in prin- 
ciple but also in detail by an elaborate resolution of the Council 
of Ten. Assuming that the insertion of the word “if” made a 
difference in the meaning, it was a change of the agreement and 
indefensible. 

Furthermore, the insertion of one word in a long text of this 
sort looked like a change made with the thought that it would 
escape notice. There was no answer to the Japanese contention 
that the word should be stricken out. 

With this omission and with the understanding that the list 
of countries should also be omitted, the Mandates Article was 
passed, the Smuts substitute being accepted as the new text, but 
referred to the Sub-Committee. 


; For the text of this resolution see p. 109 sq 
?See Annex 1 to the English minutes of the Sixth Meeting in Document 
19, and also Document 22. 
* At p. 186 sq. 


SIXTH MEETING OF THE COMMISSION I9QI 


Article 18, the Labor Article of the Hurst-Miller Draft (now 
Article 23 (a) of the Covenant) was passed in a modified form. 
The basis of this was the British proposal (see Document 22), 
but there were some changes, including a specific reference to a 
Permanent Commission of Labor. As the minutes show, the 
discussion was brief, for the Article was not contentious. The 
new text read thus: 


The High Contracting Parties will endeavour to secure and 
maintain fair and humane conditions of labour for men, women, 
and children, both in their own countries and in all countries tc 
which their commercial and industrial relations extend; and to 
that end agree to establish as part of the organization of the 
League a permanent Commission of Labour. 


The “religious” Article, numbered 19 in the Hurst-Miller 
Draft, was much more troublesome. Cecil proposed a new text,” 
but no fewer than five members of the Commission expressed 
their doubts as to such an Article, recognizing much more clearly 
than did Wilson the enormous difficulties which it presented in 
any form.? The whole matter was accordingly referred to the 
Sub-Committee so that it might come up again. With this, 
the Sixth Meeting (February 8) adjourned. 


*The minutes say “Labour Commission.” 

*? See Document 22 for the English and French of this; also the Annexes to 
the minutes of the Sixth Meeting in Documents 19 and 20. 

*The minutes here are rather mixed, the English and the French giving 
somewhat different versions of the remarks of Reis and Veniselos. 


CHAPTER XVII 
SEVENTH MEETING OF THE COMMISSION 


FEBRUARY 8 was a Saturday and the Seventh Meeting of the 
Commission was fixed for Monday morning, February 10. The 
Sub-Committee was to meet on Sunday, at 2:30 P.M. 

On Saturday afternoon Lord Eustace Percy and I drew up 
a new paragraph for Article 10, as the text was then numbered 
(now 12). The Commission at its Fourth Meeting on Febru- 
ary 6 had directed the Secretariat to prepare such an amend- 
ment,! fixing some time limit for an arbitral award or a Council 
recommendation. Percy and I agreed on an English text only. 
As reported by the Secretariat it was in English and French as 
follows: 


In any case under this article, the award of the arbitrators shall 
be made within a reasonable time, and the recommendation of the 
Executive Council shall be made within six months after the 
submission of the dispute. 


Dans tous les cas prévus par cet article, le jugement des arbitres 
devra étre rendu dans un délai raisonnable et la recommandation 
du Comité Exécutif devra étre faite dans un délai de six mois 
apres que le litige lui aura été soumis. 


At this conference with Percy at my office we also discussed 
the proposed amendments to Article 13 (now 15) of the Cove- 
nant. The debate on these had taken place at the Fifth Meeting 
of the Commission, on February 7, and the suggestions made 
had been referred to the Sub-Committee, which was to meet 
on February 9g. 

Hymans had proposed that a unanimous report of the Council 
regarding a matter in dispute between States should, in effect, 
be a binding decision of the dispute just as if it were an arbitral 
award. Veniselos’ suggestion regarding this amendment of 
Hymans was (I quote from the English minutes of the Fifth 
Meeting) : 

*See p. 173. 

* See p. 179 sq. 

192 


SEVENTH MEETING OF THE COMMISSION 193 


The Council should have some right to secure the satisfaction 
of the claims of the injured party to a dispute in cases where the 
Council had unanimously reported in favour of those claims. 


This apparently was the sense of the Commission,’ so in our 
talk Percy and I called it the ‘““Veniselos amendment.”’ 

My discussion with Percy shows that both the British and 
ourselves at that time were not in favor of obligatory arbitration 
at all. What is said in my Diary about this talk is as follows: 


I then told Percy very frankly my views of the proposed 
amendment of Veniselos and expressed my reasons for believing 
that it should not be adopted, as follows: that the provision in 
Article xm that a unanimous vote of the Executive Council 
should be a decision of the question, in so far as it would be a 
form of compulsory arbitration, would raise a new principle in 
the Covenant and great opposition in the United States and, I 
think, in Great Britain. Percy said that he was inclined to agree 
with my views, or at least had great sympathy with them, al- 
though he thought there was a good deal to be said on the other 
side. I admitted that there was much to be said on the other side 
so far as the working out in practice of such an amendment was 
concerned, but that I was thinking particularly of the danger of 
such an amendment jeopardizing the success of the plan. Percy 
said that he would discuss the matter with Lord Robert Cecil and 
that he might propose an amendment which would simply permit 
a State which had unanimous decision in its favor to go to war in 
support of it. I expressed an opinion, however, that it would be 
best to leave the whole amendment out. 


The result was that the Sub-Committee reported a clause to the 
effect that if any Party to a dispute should refuse to comply with 
a unanimous report of the Council, then the Council should “con- 
sider what steps can best be taken to give effect to their recom- 
mendation.” 

However, while this provision is in the Covenant of February 
14,” it was finally omitted (see the sixth paragraph of Article 15 
of the Covenant). 

The Sub-Committee met, I assume, on Sunday, February 9g. 
As I mentioned above, it was composed of Bourgeois, Cecil, Hy- 


*See also the discussion under Article 14 at the Fifth Meeting of the 
Commission. 

*In somewhat stronger language. See Article 15 in the Annex to the 
English minutes of the Tenth Meeting, in Document 109. 


— 


194 THE DRAFTING OF THE COVENANT 


mans and Veniselos. I was not present at the meeting, so I can 
give no account of it except the result, which was a report in 
English and in French, which was limited to the text of the 
proposed amendments.? 

This report was presented at the Seventh Meeting of the 
Commission on the morning of February 10; but as my notes 
say ? and for some reason that I do not now recall, the “Report 
of Drafting * Committee” at the opening of the meeting was “not 
quite ready.” 

The language reported by the Sub-Committee for the 
English text * of the various Articles considered by it will now 
be noticed, their first proposal being this: ‘ 


For the third sentence of the second paragraph of Article 13 
(now the sixth paragraph of Article 15), added language italicized : 

“If the report is unanimously agreed to by the members of 
the Council other than the parties to the dispute, the High Con- 
tracting Parties agree that none of them will go to war with 
any party which complies with its recommendations, and that, if 
any party shall refuse so to comply, the Council shall consider 
what steps can best be taken to give effect to their recommenda- 
tion.” 


As a consequence of this added language the Sub-Committee 
recommended the following addition to Article 11 (now 13): 


If not, the Executive Council shall consider what steps can 
best be taken to give effect to the award or the decision. 


It may be noted here as a rather curious final result that the 
first of the above two recommendations of the Sub-Commit- 
tee was ultimately omitted from the Covenant text; the second, 
however, which was thought in a sense to follow from the first, 
remains and is now in substance the last sentence of Article 13. 
This may be said to bring out all the more strongly the fact that 


* For the Report in each language, see the respective minutes of the Seventh 
Meeting, Annex I. 

* This is confirmed by the minutes, as the Report of the Committee came 
up toward the close of the meeting. 

* The Sub-Committee named at the Fifth Meeting of the Commission came 
to be called a Drafting Committee at the Sixth Meeting. But I shall con- 
tinue to call it the Sub-Committee, to avoid confusion with the Drafting 
Committee appointed at the Eighth Meeting. 

‘I think that anyone who compares the French with the English of the 
various amendments in the English and French minutes will agree that they 
were in general first written in English and then translated. 


SEVENTH MEETING OF THE COMMISSION 195 


a unanimous recommendation of the Council under Article 15 is 
not a binding and conclusive settlement. 
Other proposals of the Sub-Committee follow: 


For the second sentence of the third paragraph of Article 13 
(now the second sentence of the ninth paragraph of Article 15), 
added language italicized: 

“The dispute shall be so referred at the request of either 
party to the dispute, provided that such request must be made 
within fourteen days after the submission of the dispute.” 
For the latter part of the first sentence of Article 15 (now 

Article 17): 

“.. . The High Contracting Parties agree that the State 
or States not members of the League shall be invited to accept 
the obligations of membership in the League, for the purpose 
of such dispute, upon such conditions as the Executive Council 
may deem just.” 

For the first words of the Mandates Article (then 17, now 
22): 

“To those colonies and territories which in consequence 
of the late war have ceased to be under the sovereignty of the 
States which formerly governed them, and which are inhabited 


There was no difference of view and no discussion regarding 
the report of the Sub-Committee concerning the Articles 
above mentioned. Similarly the above quoted report? of 
the Secretariat as to Article Io (now 12) was adopted nem. con. 

However, one portion of the report of the Sub-Com- 
mittee provoked considerable debate. This was the new draft of 
Article 19, the “religious” Article. As reported by the Sub- 
Committee, it read thus: 


Recognizing religious persecution as a fertile source of war 
the High Contracting Parties solemnly undertake to extirpate such 
evils from their territories, and they authorize the Executive 
Council, wherever it is of opinion that the peace of the world is 
threatened by the existence in any State of evils of this nature, to 


*A curious slip in the French minutes of the Seventh Meeting should be 
noted here. Annex 1 sets forth the text of various Articles adopted at this 
meeting. Among these is Article 17; but its text as given is entirely erroneous. 
Its opening words, pursuant to the report of the Sub-Committee, are 

iven correctly; but they are followed by the French of the Hurst-Miller 
raft instead of by the French of the Smuts substitute as adopted at the Sixth 
Meeting on February 8. 
* See p. 192. 


196 THE DRAFTING OF THE COVENANT 


make such representations or take such other steps as it may con- 
sider that the case requires. 


This draft was largely copied from the British proposal 
(which will be found in Document 22), although it is even more 
drastic; during the discussion of its language I wrote a note to 
the President regarding the words “or take such other steps’, 
saying that they “go very far and, I think, farther than any other 
provision in the Covenant.” The text of this draft was not liked 
by the Commission at all, despite its source. 

Finally, Wilson proposed a substitute text which was adopted 
in the following form: 


The High Contracting Parties agree that they will make no 
law prohibiting or interfering with the free exercise of religion, 
and they resolve that they will not permit the practice of any par- 
ticular creed, religion, or belief, whose practices are? not incon- 
sistent with public order or with public morals, to interfere with 
the life, liberty or pursuit of happiness of their people. 


It is impossible to suppose that Wilson wrote this, for he was 
a master of English. Now the latter part of this substitute text 
as above written, if it means anything at all, which is more than 
doubtful, is contrary to what was presumably the intention of its 
author. What that intention was is doubtless expressed by the 
text which the French wrote: 


Les Hautes Parties Contractantes décident qu’elles ne per- 
mettront pas que leurs citoyens, adhérents d’une foi, religion ou 
croyance quelconque, qui ne porte pas atteinte a l’ordre ou aux 
moeurs publiques, soient pour cette raison inquiétés dans leur vie, 
leur liberté et leur poursuite du bonheur. 


However, the English text had a sufficiently satisfactory 
sound to end the discussion and as it was subsequently made in- 
telligible and then finally omitted altogether, no harm was done. 

During the earlier stages of this Seventh Meeting of Febru- 
ary Io the last three Articles of the Hurst-Miller Draft had been 
passed on after prolonged debate. Article 20 (now 23 (e)) was 
merely a general statement of the principle of economic equality : 


The High Contracting Parties will agree upon provisions in- 
tended to secure and maintain freedom of transit and just treat- 
ment for the commerce of all States members of the League. 


*My notes read “practice is.” 


SEVENTH MEETING OF THE COMMISSION 197 


During the debate there were various observations of interest. 
According to my notes, Wilson made the following explanation of 
the principle of the Article: 


Not any restriction on any State in regard to its fiscal policy, 
no thought of curtailment of right of customs duty, port charges, 
etc.—in mind that old arrangements of retaliatory tariffs and dis- 
criminatory tariffs should be done away with. 


He also remarked, remembering the resolution of the Plenary 
Session of the Conference of January 25, that “the Covenant 
would form an integral part of the Treaty of Peace’; and, con- 
cerning the reconstruction period, emphasized by Belgium and 
France, he stated that “Germany will not be a member of the 
League during this period.” The result was that a formula sug- 
gested by Wilson was added which met the French and Belgian 
views regarding reconstruction. Furthermore, although the 
minutes do not so state directly, the word “just” was changed to 
“equitable” and finally a change was made in the opening words, 
of which I can find no record at all except the subsequent print 
of the text, the Article then reading as follows: 


The High Contracting Parties agree that provision shall be 
made through the instrumentality of the League to secure and 
maintain freedom of transit and equitable treatment for the com- 
merce of all States, members of the League, having in mind, 
among other things, special arrangements with regard to the 
necessities of the regions devasted during the war of 1914-1918. 


It was, however, when what I may call the two “Treaty” Ar- 
ticles were reached (then 21 and 22, now 18 and 20), that really 
fundamental issues of international relations of the future came 
into question. 

Article 21, for the Registration of Treaties, read thus in the 
Hurst-Miller Draft: 


The High Contracting Parties agree that any treaty or inter- 
national engagement entered into between States Members of the 
League shall be forthwith registered with the Chancellor, and as 
soon as possible published by him. 


The word “any” was changed to “every” and it was under- 
stood that only subsequent treaties were intended, an understand- 
ing now expressed in the Covenant by the word “hereafter.” A 


198 THE DRAFTING OF THE COVENANT 


Wilson amendment added the words “and that no treaty or in- 
ternational engagement shall be operative until so registered.” 
While the precise juridical effect of this expression in the form 
in which it now exists in the Covenant presents various interest- 
ing legal difficulties, there can be no doubt that the added words 
put some extra teeth into the Article. 

One other seemingly verbal change should be mentioned. For 
the words “entered into between States Members of the League,” 
M. Vesnitch’s amendment substituted “entered into by any State, 
a member of the League.’’1 The resulting difference is that now 
a treaty between France and Russia is registered at Geneva, al- 
though Russia is not in the League. Under the original lan- 
guage, registration of such a treaty would not have been obliga- 
tory. 

So the new text read thus: 


The High Contracting Parties agree that every Treaty or 
international engagement entered into by any State, a member of 
the League, shall be forthwith registered with the Chancellor and as 
soon as possible published by him, and that no Treaty or interna- 
tional engagement shall be operative until so registered. 


Then followed in the Hurst-Miller Draft Article 22 (now 20) 
against Treaties inconsistent with the Covenant: 


The High Contracting Parties severally agree that the present 
Covenant is accepted as abrogating all obligations inter se which 
are inconsistent with the terms hereof, and solemnly engage that 
they will not hereafter enter into any engagements inconsistent with 
the terms hereof. 

In case any of the Powers signatory hereto or subsequently 
admitted to the League shall, before becoming a party to this 
Covenant, have undertaken any obligations which are inconsistent 
with the terms of this Covenant, it shall be the duty of such Power 
to take immediate steps to procure its release from such obligations. 


These are very natural provisions to which no one could in 
terms object ;? none the less they are very far reaching and im- 
portant. A treaty of the political consequences of the Anglo- 
Japanese alliance was subsequently recognized as being in part 

*In the English minutes of the Seventh Meeting, the words are “by a State 
Member” but in Annex 3, the Article appears as in the text. Cf. the French 


minutes, which mention the amendment, but take no note of it in the Annex. 
2 See p. 8 sq. for almost the same language in the Phillimore Plan. 


SEVENTH MEETING OF THE COMMISSION 199 


within the scope of the language of abrogation. The debate in 
the minutes is worth the reading. 

Who was to pass on the question of a possible inconsistency 
between the Covenant and some other treaty? Larnaude in- 
quired whether it would be some Tribunal or the Council. Wilson 
suggested “the decision of the court of public opinion.” 

Suppose the Secretary General might think that a treaty of- 
fered for registration was contrary to the Covenant? In such 
case both Veniselos and Cecil thought he should lay it before the 
Council for a decision. The idea of a ruling by the Council 
seemed most acceptable. The Permanent Court of International 
Justice was as yet only a hope. 

In the minds of all the statesmen was naturally the question 
of treaties of alliance. Did the Covenant permit them or not? 
Orlando pointed out the great significance of the “limitation upon 
the freedom of Governments to enter into engagements.” All 
alliances are called ‘‘defensive,” he said. Hymans recurred to 
the admitted possibility of war under the language of what is 
now Article 15. If there might legally be war, he logically, if 
boldly, held that in such case there might be even an “‘offensive” 
alliance. 

No one was objecting to a clause against treaties inconsistent 
with the Covenant. It was agreed to without dissent or even 
proposal of amendment. But everyone wondered just how far 
the new limitation would extend in practice. 

So while the discussion altered nothing in the text of the 
Article against inconsistent treaties, it showed a recognition of 
the fact that the Covenant meant a change from the previously 
accepted system. States were no longer to be free to make 
treaties as they saw fit. They must at least conform to the new 
Covenant. Maybe some alliances could be entered into. Per- 
haps the Council could pass on such matters. Instinctively it was 
realized that realities were to be thought of, not merely forms 
of words. An alliance between Norway and Sweden is different 
in nature, not merely in degree, from an alliance between Ger- 
many and Russia. It was enough perhaps that the principle had 
been settled, the details of the problem remaining for later solu- 
tion, to be attempted in the Treaty of Mutual Assistance and 
more ambitiously in the Protocol of Geneva, and achieved, in 
part at least, at Locarno. 

Indeed the discussion seemed to Orlando so important that 
he asked for its inclusion in the minutes, for the reason, as the 


200 THE DRAFTING OF THE COVENANT 


French minutes put it, “car elle donne une interprétation re- 
strictive a l’article xx1, dont il y a lieu de tenir compte.” My 
notes put his request thus: 


Orlando thinks the procés-verbal should contain the discussion 
as showing that the sanction of this important Article is public 
opinion. 


Finally, when the discussion touched on the status quo ante 
Mr. Wilson put the wisdom of real statesmanship in a few words: 
“Tt does not rest with us to send a search warrant into the poli- 
tics) OT the, Pasty ity Ae Our task is primarily to build for the 
future.” 

The Commission had now gone through the Hurst-Miller 
Draft; but there were various proposals of amendments and 
additions pending. It was agreed that they should go over to the 
next meeting and I shall refer to them in detail later. 1 

There was, however, one amendment which was disapproved 
at this meeting, although it is not mentioned in the minutes at 
all, but only in my notes. This was the proposal of Vesnitch 
regarding the Mandates Article which I have already discussed.? 

*Some of them, but not all, are referred to in the closing paragraph of 


the minutes of this Seventh Meeting of February Io. 
* See p. 188 sqq. 4 


CHAPTER XVIII 
EIGHTH MEETING OF THE COMMISSION 


ONE more meeting of the Commission was to be held before 
the Covenant was gone over in its entirety by a Drafting Com- 
mittee. This Eighth Meeting was on the morning of Febru- 
ary 11. The situation then was that the twenty-two Articles of 
the Hurst-Miller Draft of the Covenant had, with some changes, 
been passed on a first reading, but with various proposals pending. 

In preparation for the session, I had made for the President 
a list of the pending amendments, with their English text. The 
list did not, however, include the text of the Japanese equality 
proposal, which I mentioned above,! as that amendment had not 
been formally presented. I reprint here merely the enumeration, 
as the text of each of the proposals appears elsewhere : 


Article v1, by M. Bourgeois. 
Article v1, by M. Bourgeois. 


Article x1, by M. Vesnitch. (It was suggested that this 
amendment go over to the second reading.) ” 


Article xiv, by M. Bourgeois. 


Article xvi1, by M. Bourgeois. (This amendment seems to 
be still pending as the French requested that it be distributed.) ® 


Article xxii, additional Article proposed by Lord Robert 
Cecil. 


Article xxiv, additional Article proposed by Lord Robert 
Cecil. 


Except as above noted, the text of each of these proposals is 
quoted in the following discussion. 

What the Eighth Meeting of the Commission did was to 
adopt two new Articles and then refer the entire Covenant to a 
Drafting Committee to which the various pending amendments 

*See p. 183. 

* Quoted p. 189. This amendment was not brought up again or acted 


n 
* Quoted, p. 187. This amendment was mentioned at the Tenth Meeting. 
See the minutes and p. 264 sg. (Article 19). 


201 


202 THE DRAFTING OF THE COVENANT 


and any others offered were to be submitted. Curiously enough, 
neither the fact of this reference nor the names of the members 
of the Committee appear in the English or French minutes, al- 
though an early draft of the English minutes, which I quote 
below,! makes a definite statement of the matter. 

The Eighth Meeting first took up the proposal of Cecil to add 
a new Article 23 (originally proposed as 24, see Document 22) 
for the revision of obsolete treaties. This proposal, which was 
destined in its changed form to become Article 19 of the Cove- 
nant as now written, grew out of (the present) Article 10 and 
its guarantee of territorial integrity. In one of our earliest talks 
Cecil had suggested the idea in place of the provisions of the 
British Draft (Document 10) and of Wilson’s First and Second 
Paris Drafts (Article 3) for changes in frontiers and I had then 
said I thought it would be acceptable.? 

But while the principle was acceptable, the language proposed 
by the British * was unsatisfactory : 


The Body of Delegates shall make provision for the periodic 
revision of treaties which have become obsolete and of Interna- 
tional conditions, the continuance of which may endanger the 
Peace of the world. 


In my memorandum to Colonel House of February g I had 
written about the proposal as follows: 


If this Article means that the Body of Delegates have any 
power beyond that of recommendation, it is bad. If it means that 
they have only powers of recommendation, it should say so. I 
suggest the following substitute: 


“The Body of Delegates shall make recommendations as to 
the periodic revision of treaties which have become obsolete 
and of international conditions, the continuance of which may 
endanger the Peace of the World.” 


The question was whether the Assembly was to have more 
than the right of recommendation as to the revision of treaties. 
I thought it should be made clear that it had no power of revi- 
sion. My view was similar to that expressed by Kramar, that if 
the Assembly ‘“‘were to become the judge of all treaties it would 
have powers like those of an international parliament” ; and dur- 

*See p. 210. 
2 See p. 52 sq. 


*See Document 22. The English minutes leave out the words “the Peace 
of.” 


EIGHTH MEETING OF THE COMMISSION 203 


ing the meeting I wrote to Wilson that if the draft gave more 
power than recommendation it was bad; or, in other words, un- 
constitutional. 

Cecil’s remark during the debate that the Assembly could not 
act under the proposal except by unanimous vote does not answer 
the constitutional point, for by the fundamental laws of many 
countries the revision of a treaty requires legislative assent. 
Under the existing wording, indeed, the very interesting question 
has been suggested as to whether or not unanimity is required; it 
is argued that to “advise reconsideration” binds no one and so 
that such action is not to be regarded as a “decision” under Ar- 
ticle 5 of the Covenant. 

The debate was not prolonged. Toward its close Reis asked 
whether the Council! could refuse to register a treaty; then the 
English minutes add: “This question was answered in the nega- 
tive.’ This remark does not appear in the French minutes and 
is a late addition to the English, for it is not in the English print 
circulated about March 22. The generality attributed to the 
answer would indicate that it was intended to express the sense 
of the meeting; and while according to my view the negative 
answer is the correct one, I question whether it was given at that 
time. 

Then Wilson proposed the new text, which was adopted as 
Article 23 (now 19): 


It shall be the right of the Body of Delegates from time to 
time to advise the reconsideration by the States, members of the 
League, of treaties which have become inapplicable, and of inter- 
national conditions, the continuance of which may endanger the 
peace of the world. 


Next came the Article for amendments to the Covenant, pro- 
posed by the British as 24 (originally proposed as 23 and now 
26): 


Amendments to the constitution and functions of the League 
can be made by a unanimous vote of the Executive Council con- 
firmed by a majority of the Body of Delegates. 


The form of the Article as proposed was repugnant to the 
Constitutions of various countries, including the United States, 


‘ * According to the English minutes, the question included the Assembly 
also. 


204 THE DRAFTING OF THE COVENANT 


as I thus had specifically mentioned in my comment on it of 
February 9: 


In my opinion this amendment would be invalid under the 
United States Constitution. 

The Covenant is a treaty; or strictly speaking, a part of a 
treaty, and any amendment thereof is technically, and might indeed 
be substantially, a new engagement. 

So far as the United States is concerned, the amendment would, 
I think, be valid if it read: 

“Amendments to the constitution and functions of the 
League will be binding when ratified by the States whose 
representatives compose the Executive Council, and by a ma- 
jority of the States whose representatives compose the Body 
of Delegates.” 

I see no reason, however, for the insertion of the words: “and 
functions,” and I think these words should be stricken out. 


The language of the British proposal did not take note of the 
great difference that there is, legally speaking, between the voting 
of an amendment by the Council of the League, or by the As- 
sembly (each of these bodies being a conference of representatives 
of Governments) and the ratification of such an amendment ac- 
cording to the fundamental laws of the country represented. 

During the discussion I wrote to Mr. Wilson: 


This is invalid in its present form. I think it would be good 

so far as the United States is concerned if it read: 
“Amendments to the constitution of the League will be 
effective when ratified by the States whose representatives com- 
pose the Executive Council together with a majority of the 
States whose representatives compose the Body of Delegates.” 


In substantially this form, with a simple majority in the As- 
sembly changed to a three-fourths majority, in accordance with 
the sense of the meeting, Wilson proposed the new text which 
was adopted : 


Amendments to this Covenant will be effective? when ratified 
by the States whose representatives compose the Executive Council 
together with a three-fourths majority of the States whose repre- 
sentatives compose the Body of Delegates. 


*The English minutes of the Eighth Meeting have “take effect” for “be 
effective.” This is an error, for I still have the paper which I wrote and 
which Wilson changed and read. 


EIGHTH MEETING OF THE COMMISSION 205 


It may be said here of this new text that there could be no 
question of its validity as to any country represented on the Coun- 
cil. It was not even yet sufficient for a country represented only 
in the Assembly and not willing to ratify a proposed amendment. 
To preserve the rights of such a country a provision permitting 
withdrawal upon dissent from a change was required (see Article 
26 of the Covenant). The minutes, as well as the following ex- 
tract from my notes, show that the point was mentioned at this 
meeting, though not then settled: 


The next draft provides “this Covenant” instead of “Constitu- 
tion of the League.” 

Insert “two-thirds” before “majority.” Veniselos objected 
that a State could not be bound in an essential matter by any 
majority. I suggested a clause which might meet this about as 
follows: 


“But no such amendment shall be effective, if any State 
not assenting thereto’ shall declare that it affects an essential 
matter.” 

Cecil suggested withdrawal. 

Veniselos suggested three-fourths after. 

Vesnitch approved two-thirds. - 
Three-fourths adopted. 


Besides the minutes, I have a draft minute of this meeting 
typed in English. I do not know who wrote it. As it throws 
some further light on the debate, I extract here its contents so 
far as they relate to the discussion up to this point: 


ARTICLE XXIII. 


Lord Robert Cecil explained the purpose of this Article. 
After discussion concerning the purport of the Article, Presi- 
dent Wilson suggested that it should be changed to read: 


“Tt shall be the right of the Body of Delegates from time to 
time to advise the reconsideration by the States, members of 
the League, of treaties which have become inapplicable, and of 
international conditions, the continuance of which may en- 
danger the peace of the world.” 


Article xx111 was adopted in this modified form. 


206 THE DRAFTING OF THE COVENANT 
ARTICLE XXIV. 


Lord Robert Cecil explained that the object of this proposal 
was to provide means for amending the Covenant as it might from 
time to time appear advisable. 

In view of the fact that the Article in this form was repugnant 
to the Constitution of the United States, President Wilson sug- 
gested that it be modified to read: 


“Amendments to the Constitution of the League will be ef- 
fective ratified by the States whose representatives compose the 
Executive Council together with a majority of the States whose 
representatives compose the Body of Delegates.” 


An observation by Mr. Venizelos gave rise to a discussion con- 
cerning the relative value of flexible and rigid constitutions and 
of the consequences which too rigid a constitution might provoke. 
M. Venizelos referred to the Constitution of Greece whereby it was 
provided that amendments dealing with “non-fundamental” mat- 
ters might be more easily adopted than amendments which touched 
upon “fundamentals.” 

Baron Makino pointed to the impracticability of drawing any 
valid distinction between these two, and in this observation he 
was supported by the opinion of the Commission. The discus- 
sion led to the adoption of the Article in the following modified 
form: 


“Amendments to this Covenant will be effective when rati- 
fied by the States whose representatives compose the Execu- 
tive Council together with a three-fourths majority of the States 
whose representatives compose the Body of Delegates.” 


There were pending amendments of the French to Articles 6, 
8 and 14, and these were pressed at this Eighth Meeting of the 
Commission. Their text follows: 1 


ARTICLE VI. 


The second paragraph to be modified so as to read as follows: 

Furthermore no nation can be admitted into the League if it is 
not provided with representative institutions which permit it to 
be considered as itself responsible for the acts of its own Govern- 
ment; if it is not in a position to give effective guaranties of its 
faithful intention of observing its obligations; if it does not con- 
form to the principles which the League may establish concerning 

* its naval and military forces as well as its armaments. 


*The amendments were written in French and the translations here (which 
were current at the time) differ somewhat from those in the English minutes. 


EIGHTH MEETING OF THE COMMISSION 207 


Modifier ainsi le deuxiéme paragraphe: 

Aucune nation d’aillieurs ne pourra étre admise dans la Société 
si elle n’est pas pourvue d’institutions représentatives qui permet- 
tent de la considérer comme responsable elle-méme des actes de 
son propre gouvernement; si elle n’est pas en état de donner des 
garanties effectives de son intention loyale d’observer les con- 
ventions; si elle ne se conforme pas aux principes que la Société 
pourra établir en ce qui concerne ses forces navales et militaires 
ainsi que ses armements. 


ARTICLE VIII. 


After the phrase: “The Executive Council shall formulate 
plans for effecting such reduction,” insert the following para- 
graphs: 

It shall institute an international control of military forces 
and armaments of the High Contracting Parties, which agree 
to submit thereto in all good faith. 

It shall determine the conditions which are necessary for 
assuring the permanent existence and the organization of an 
international force. 


Apres la phrase: “Le Comité exécutif élaborera les plans 
appropriés permettant cette réduction,” les paragraphes suivants : 
Il instituera un controle international des effectifs et des 
armements et les Hautes Parties Contractantes s’engagent a s’y 
soumettre en toute bonne foi. 
Il déterminera les conditions dans lesquelles doivent étre 
assurée d’une fagon permanente |’existence et l’organisation 
de la force internationale. 


ARTICLE XIV. 


_ After the words of the second paragraph: “to be used to protect 
the covenants of the League,” insert the two following paragraphs : 
In the case that one of the parties to the dispute, after 
having followed the procedure imposed by Article x, should 
not accept the sentence of the arbitration, or a unanimous 
decision of the Executive Council, or of the Body of Delegates, 
the Council will propose to the associated Governments the 
application of appropriate penalties selected from those pro- 
pounded in the first paragraph of this article. 

In the case of a recommendation made by the majority only, 
concerning a dispute which could involve a recourse to arms 
by the interested parties, the executive Council will refer the 
question to the Governments themselves. 


208 THE DRAFTING OF THE COVENANT 


Aprés ces mots du deuxiéme paragraphe: “Destinée a protéger 
les engagements de la société” les deux paragraphes suivants: 

Dans le cas ou I’une des parties en litige aprés avoir suivi 
la procedure imposée par l'article 10 n’accepterait pas une 
sentence d’arbitrage ou une décision prise a l’unanimité par le 
Comité exécutif ou par l’Assemblée des Délégués le Conseil 
proposera aux gouvernements associés l’application des sanc- 
tions appropri€es parmi celles prévues au premier paragraphe 
du présent article. 

Dans le cas d’une recommandation faite seulement a la 
majorité pour un différend pouvant amener entre les parties 
intéressées un recours a la force, le Conseil exécutif soumet 
la question aux gouvernements eux-mémes. 


In presenting these amendments Bourgeois read a very 
elaborate note which will be found in the minutes, and which 
argued in some detail in favor of each of them. 

So far as the French amendment to Article 6 was concerned, 
relating as it did to the qualifications of future Members of the 
League, there appears to have been no other discussion of it and 
its principle seems to have been tacitly accepted; the Drafting 
Committee which reported to the next meeting incorporated the 
principle in Article 7 of their text, and it is now to be found in 
the second paragraph of Article 1. 

Similarly there is no further reference in the official minutes 
to the French amendment to Article 14 (now 16), which looked 
toward the possibility of the application of sanctions to the en- 
forcement of an arbitral award or a unanimous recommendation 
of the Council, and perhaps even to a majority recommendation. 
This proposal was very similar to the Belgian proposals men- 
tioned above. Despite the silence of the minutes, there is no 
doubt that this amendment was sent to the Drafting Committees, 
as my notes say: 


Bourgeois amendment to xiv referred to Committee of Four 
to coordinate amendments to XI and XIII. 


The foregoing is supported by the draft minute above men- 
tioned, which gives the following account of the proposal: 
M. Léon Bourgeois proposed an amendment to Article xiv. 
He explained that the purpose of this amendment was to give full 
effect to the relations existing between this Article and Articles 
XI and XIII. 


*p. 176. 


EIGHTH MEETING OF THE COMMISSION 209 


President Wilson and Lord Robert Cecil were of the opinion 
that the substance of the present amendment was already con- 
tained in these Articles; but agreed with the proposal of M. Veni- 
zelos that the question should be referred back to the drafting 
committee in order that the text of these Articles might be har- 
monized. 


Of course the most important French proposal was that for 
international supervision of armaments and an international 
force, the amendment to Article 8, which was insisted on through- 
out the discussions up to this point and thereafter and which was 
never acceptable either to the British or to Wilson. 

The debate was prolonged and is given at considerable length 
in the minutes. Cecil was as unwilling as Wilson to yield to the 
proposal urged by the French; but he accepted in principle the 
other amendment proposed by Bourgeois to Article 8 which was 
contained in the note which he read. This was to add, after the 
provision that the Council should formulate plans for the re- 
duction of armaments, the words: 


En tenant compte dans la fixation des contingents, non seule- 
ment de la puissance relative des Etats, mais des risques que 
peuvent leur faire courir leur situation géographique et l'état de 
leur frontiéres. 


The action taken on this proposal is more accurately set forth 
in my notes than in the minutes: 


I wrote (as to the French amendment for an international 
force) : 

It is not a question of joint military operations, but of an 
international control of our Army and Navy in war and in peace— 
these are under the President. I don’t think it is good. 

The President said it was unconstitutional and also impos- 
sible. He said it was a question which required a decision. 

Cecil supported the President and suggested “having special 
regard to the situation and circumstances of each State” after 
“international obligations.” 

Foregoing suggestion adopted but subject to question of redac- 
tion between Bourgeois and Cecil. 


Cecil suggests as addition to Article vim: 

“A Permanent Commission shall be constituted to advise 
the League in military and naval matters.” 
Not adopted. 


210 THE DRAFTING OF THE COVENANT 


Further light on the proceedings is to be found in the above 
mentioned draft minute, the remainder of which reads thus: 


M. Léon Bourgeois proposed an amendment to Article vit. 
He dwelt upon the importance of establishing each State member 
of the League in a position of “national security.” He regarded 
it as most important that there should be expressed in the Covenant 
some definite provision by which the force of the League would be 
immediately available for the support of any State which might 
be attacked. 

M. Larnaude was strongly of the opinion that protection should 
be given against secret manufacture of munitions and secret prep- 
arations for war. 

President Wilson agreed with M. Léon Bourgeois that every 
possible provision should be made for the national security of the 
members of the League, but made the point, however, that, so far 
as the United States was concerned, the Constitution of the United 
States stood in the way of his agreeing to an amendment which 
contemplated the creation of an international force and its disposi- 
tion under an international command. 

In reply to M. Larnaude, President Wilson made the point 
that in fact it was impossible for nations to engage in serious mili- 
tary preparations and keep them secret. 

Lord Robert Cecil proposed that after the words “national 
safety” the following words should be inserted in Article vir; 
“having special regard to the situation and circumstances of each 
State.” To meet the other considerations raised by M. Léon 
Bourgeois, Lord Robert Cecil proposed to add at the end of 
Article vir, these words: “A permanent commission shall be 
constituted to advise the League of Nations on military and naval 
questions.” Neither of these proposals was formally adopted. 

At the end of the meeting it was agreed that inasmuch as the 
entire Covenant had now been examined by the Commission, it 
should be placed in the hands of a drafting committee, consisting 
of M. Larnaude, Lord Robert Cecil, M. Venizelos and M. Ves- 
nitch, in order that it might be given definitive form. 

M. Léon Bourgeois and Lord Robert Cecil agreed to submit 
their amendments to the newly appointed committee for their 
consideration. 

Baron Makino reserved the right to present certain additions 
to the Covenant at the time of the second reading. 

The meeting was adjourned at 1:40 p. m. to meet again at the 
Hotel de Crillon on Thursday morning at 10:30. 


Interesting as the discussion was, it got nowhere on the major 
issue raised which was again to be considered by the Drafting 


EIGHTH MEETING OF THE COMMISSION 2II 


Committee ; and while the official minutes do not say so, the above 
quoted draft minute shows that Baron Makino reserved the right 
“to present certain additions to the Covenant” subsequently or, in 
other words, to bring up the Japanese equality amendment.} 

*See p. 183. 


CHAPTER XIX 
THE FEBRUARY DRAFTING COMMITTEE 


Tue Drafting Committee was composed of Cecil, Larnaude, 
Veniselos and Vesnitch. What the Committee had before it was 
the text of twenty-four Articles, which the Commission had 
passed on its first reading, with the pending French amend- 
ments ? of the Eighth Meeting of February 11; and it was also 
to consider any other amendments that might be suggested. 

It is unnecessary to print separately this English text of the 
Covenant, thus referred to the Drafting Committee, as it all 
appears at various points in the English minutes.2 This text, 
however, could not be regarded as representing fully the action 
of the Commission in every detail. Thus, it had been under- 
stood in the Commission that Article 21 concerning the registra- 
tion of treaties was to be applicable only to new treaties; there 
were words to be added in Article 8, for disarmament, which had 
been agreed to in principle; and the recommendation of a previ- 
ous Sub-Committee for an added sentence to Article 11 (now 
13) had been accepted. Such matters were for the Drafting 
Committee to take into account; and the necessary changes were 
incorporated in the new text. 

In any proper sense of the words, there was perhaps no 
French text at this time; but the translation? of the Hurst- 
Miller Draft, which is Annex I to the French minutes of the 
First Meeting, had been used as the basis of a French transla- 
tion of the text as the Commission went along with is work from 


* See p. 206 sqq. 

"The English text as it existed at the close of the Eighth Meeting on 
February 11 is found in the English minutes of the meetings as follows 
(Document 19) : 

Second Meeting: Preamble and Articles 1 and 2 (Annex). 

Third Meeting: Articles 3 to 6 inclusive (Annex). 

Fourth Meeting: Articles 7 to 12 inclusive (Annex) but a paragraph 

was added to Article ro later. 

Fifth Meeting: Article 14 (Annex). 

Sixth Meeting: Articles 16 and 18 (Annexes 6 and 7). 

Seventh Meeting: Articles 13, 15, 17, and 19 to 22 inclusive (Annex 3) 

added paragraph to Article 10 (Annex 2). 

Eighth Meeting: Articles 23 and 24 (Text). 

There are some trifling errors, which are noted in Document 19. 

* As to this translation see p. 131. 


212 


THE FEBRUARY DRAFTING COMMITTEE 213 


meeting to meeting. But the French minutes do not, as do the 
English minutes, contain in any form the text of all of the Arti- 
cles as passed on and in various instances the text of the Articles 
which are printed is erroneous.’ Indeed, when one considers 
how mixed the French minutes are in this regard, it is easy to 
appreciate the situation as to a French text during this period. 

The result of the work of the Drafting Committee was a new 
text in twenty-seven Articles, the English of which is Annex 2 
to the English minutes of the Ninth Meeting. This of course 
‘should be compared with the text which went to the Drafting 
Committee subject to the above remarks thereon. A summary 
view of the changes made was sent by me to Wilson on February 
13. I reproduce it here: 


This memorandum relates to the draft of “Covenant” deliv- 
ered 13 February, 1919.2, The comparison is with the draft in 
twenty-four articles as adopted by the Commission on the League 
of Nations up to the close of its session of 11 February, 


1919. 


PREAMBLE 


There is a change in verbiage in the opening words which use 
“war” instead of “the use of armed force.” 


ARTICLE I 


There is very slight change in verbiage. 


ARTICLE II 


The change made eliminated the mention of ambassadors or 
ministers. 


*The omitted Articles are 11, 12 and 14. I have inserted them as notes 
in the French minutes (Document 20) and have also tried to indicate all the 
errors and other variations. Subject to this, the French text (such as it was) 
which existed at the close of the Eighth Meeting on February 11 is in the 
French minutes as follows: 

Second Meeting: Preamble and Articles 1 and 2 (Annex). 

Third Meeting: Articles 3 to 6 inclusive (Annex). 

We oe Articles 7 to 9 inclusive (Annex) and 11 and 12 

ote). 

Fifth Meeting: Article 14 (Note). 

Sixth Meeting: Articles 16 and 18 (Annex 11). 

Seventh Meeting: Articles 10, 13, 15, 17, 19, 20, 21 and 22 (Annex 11). 

Eighth Meeting: Articles 23 and 24 (Annex). 


7i.e. from the Drafting Committee, Annex 2 to the English minutes of the 
Ninth Meeting. 


214 THE DRAFTING OF THE COVENANT 


ARTICLE III 
This consists of the first three paragraphs of former Article 
III, without substantial change. 
ARTICLE IV 


This consists of the remaining paragraphs of former Article 
111, without change. 


ARTICLE V 
This is former Article Iv with some change in language, the 
words: “Secretary General” being adopted instead of: “Chancel- 
lor,” in this Article and throughout the draft. 
ARTICLE VI 


This is former Article v without change. 


ARTICLE VII 
This is former Article v1 and is somewhat changed. A com- 
parison of the texts is necessary. 
ARTICLE VIII 


This is former Article vi11 with some changes and additions. 
A comparison of the texts is necessary. The words in parenthesis 
are an amendment proposed by the Delegate from Portugal, which 
was left without decision by the Committee of Four. 
ARTICLE IX 


This Article is new. 


ARTICLE X 
This is former Article vi1, the second sentence being changed 
principally by the insertion of the words: “or in case of any 
threat or danger of such aggression.” 
ARTICLE XI 
This is former Article 1x somewhat changed in the second 
paragraph. 
ARTICLE XII 


This is former Article x. The word “war” is substituted for: 
“armed force.” 


ARTICLE XIII 


This is former Article x1. The arrangement and the language 
have been changed but, I believe, without change in meaning. 


THE FEBRUARY DRAFTING COMMITTEE 215 


ARTICLE XIV 


This is former Article x11, without change. 


ARTICLE XV 


This is former Article x111, with a few changes of language. 


ARTICLE XVI 
This is former Article xiv without ciange except as required 
by the renumbering of the Articles. 
ARTICLE XVII 
This is former Article xv without change except as required 
by the renumbering of the Articles. 
ARTICLE XVIII 
This is former Article xvi with a change in the opening 
language. 
ARTICLE XIX 
This is former Article xvi1 with the following changes: 


1. The words: “as a” are substituted for the word: “in” 
in the opening phrase. 

2. The word: “yet” is inserted in the third line. This 
word appears in the official text of the Resolution of the five 
Powers relating to mandataries. 

3. In the sixth paragraph the expression: “the South Pa- 
cific Islands” is used instead of: “the Islands in the South 
Pacific” in accordance with the text of the above Resolution. 

4. Typographical errors in the next to the last paragraph 
have been corrected. 


ARTICLE XX 
This is former Article xvi11 with the word: “Bureau” substi- 
tuted for: “Commission.” 
ARTICLE XXI 
This is former Article x1x, rewritten. A comparison of the 
texts is necessary. 
ARTICLE XXII 


This is former Article xx unchanged. 


ARTICLE XXIII 


This article is new. 


216 THE DRAFTING OF THE COVENANT 


ARTICLE XXIV 
This is former Article xx1 somewhat changed in language. 


ARTICLE XXV 


This is former Article xx111 with very slight changes. 


ARTICLE XXVI 


This is former Article xx11 without change. 


ARTICLE XXVII 


This is former Article xxiv with slight changes. 


With this may be read the report of the Drafting Committee 
accompanying the new text, most of which is nothing more or 
less than a list of the changes made by the Committee. It is An- 
nex I to the English minutes of the Ninth Meeting. There is no 
corresponding report in the French. The report refers to the 
Articles by the old, not the new, numbers. I note here that the 
report suggested Geneva as the Seat of the League. 

I was present at the meeting of the Drafting Committee on 
February 12; with an interval for lunch it lasted till five o’clock. 

The positive result of the Drafting Committee’s work, the 
new text and its report, I have already mentioned; something 
should now be added as to its proceedings. 

Once more there was brought up the French amendment for 
an international force, which of course Cecil was not willing to 
accept and did not accept at all. Cecil’s suggestion, which had 
been made at the meeting of February 11, for the creation of a 
Permanent Commission to advise the League on military ques- 
tions generally, which the Committee adopted as Article 9 of the 
Covenant, was as far as he would go. Some details of the dis- 
cussions are mentioned in this extract from my Diary: 


The Committee considered and went through the draft during 
the morning but reached difficulties with the French, who pro- 
posed amendments regarding an international armed force. 
Finally, Cecil, saying that he was speaking very frankly but in 
private, said: that America had nothing to gain from the League 
of Nations; that she could let European affairs go and take care 
of her own; the offer that was made by America for support was 
practically a present to France, and that to a certain but to a lesser 
extent this was the position of Great Britain which, while vitally 
interested in continental affairs, yet to a certain extent could stand 
apart. Accordingly, he wished to say very frankly to the French 


THE FEBRUARY DRAFTING COMMITTEE 217 


delegates that in his view they were saying to America, and to a 
lesser extent to Great Britain, that because more was not offered 
they would not take the gift that was at hand, and he warned them 
very frankly that the alternative offer which we have made, if the 
League of Nations was not successful, was an alliance between 
Great Britain and the United States. He asked them to consider 
this before they made any final conclusion. At this the meeting 
adjourned for lunch. 


The British laid before the Drafting Committee their pro- 
posal of amendments,’ which I print here: 


PREAMBLE 


In order to place in the forefront of the Covenant for the in- 
formation of public opinion a summary of the objects which the 
Covenant is designed to secure, it is suggested that the Preamble 
should be redrafted as follows: 

“In order to promote international co-operation and to 
establish international peace and security upon enduring foun- 
dations, the High Contracting Parties adopt this constitution 
of the League of Nations and pledge themselves to the follow- 
ing policy, the detailed application of which is provided for 
in the Articles of this Covenant : 

1. They unite in establishing permanent organs for the 
conduct of international relations through which the will of the 
nations associated in the League may find expression. 

2. They unite in prescribing open, just and honorable 
relations between nations. 

3. They accept the obligations hereinafter set forth for the 
avoidance of war; they recognize the understanding of inter- 
national law as the actual rule of conduct among governments, 
and they undertake to maintain justice and a scrupulous respect 
for all treaty obligations in the dealings of organized peoples 
with one another. 

4. They undertake to safeguard the ne of all nations 
members of the League. 

5. They entrust to the League the sty of the means 
whereby the burden of armaments may be removed from their 
peoples and whereby the dangers involved in the trade of arms 
and ammunition may be averted. 

6. They embody in the constitution of the League securi- 
ties for the well-being and development of peoples not able 
to stand by themselves under the strenuous conditions of the 
modern world. 


*Cf. Document 11, the amalgamation by Lord Eustace Percy of the British 
and Wilson drafts. 


218 THE DRAFTING OF THE COVENANT 


7- They agree to establish a permanent organization for 
improvement of labour conditions. 

8. They unite in a solemn recognition of the principle of 
freedom of conscience and religion. 

g. They combine to safeguard commercial intercourse 
between them in the interests of peace. 

10. They will include in the organization of the League 
machinery for the investigation, administration or settlement 
of any matters of common concern to the life, health or inter- 
ests of their people which may be entrusted to the care of the 
League by the treaties of peace or by any future international 
agreement.” 


GENERAL FORM OF COVENANT 


It is suggested that the Covenant should be divided into four 
chapters dealing respectively with the Constitution of the League 
(Chapter 1), the Avoidance of War (Chapter 2), the Special 
Functions of the League (Chapter 3) and Concluding Provisions 
(Chapter 4). 

It is suggested that Chapter 1 should include Articles 1 to 6 
and 23, but it is also suggested that a new Article is needed after 
Article 3. This new Article 4 should run as follows: 


“The High Contracting Parties agree that there shall be 
established as part of the organization of the League a Repre- 
sentative Assembly elected by the legislative bodies of all 
States members of the League, and that this Assembly shall 
meet regularly at the Seat of the League for the purpose of 
examining and advising upon the policy and action of the 
Body of Delegates and the Executive Council and of all inter- 
national organs placed under their supervision or control. 
They entrust to the Executive Council the duty of formulating 
the constitution of this Assembly, which shall meet for its 
first session at the Seat of the League not later than twelve 
months after the present treaty comes into force.” 

A similar insertion to be made in Article 1. 


The present Articles 4 to 6 will then be numbered 5 to 7 and 
Article 23 will be numbered 8. 

Chapter 2 should include Articles 9 to 15. 

Chapter 3 would begin with Articles at present inrnbeeed 7 and 
8, which would then become 16 and 17. The remainder of Chapter 
3 would consist of the present Articles, 16, 17, 18, 19, 20, 21, and 
24, which would then be numbered 18, 19, 20, 21, 22, 23, and 24. 
There would be some advantage in adding two Articles to Chap- 
ter 3 covering the points in the sub-section 10 of the Preamble. 
There are, as a matter of fact, a number of matters such as, for 


THE FEBRUARY DRAFTING COMMITTEE 219 


instance, the international control of opium, morphia and other 
dangerous drugs which the competent British officials are particu- 
larly anxious to bring within the scope of the League, and there 
would be great advantages in bringing under the supervision of 
the League as many as possible of the already established interna- 
tional bodies, some of which are very anxious to co-operate in the 
League (e. g. the National Institute of Agriculture at Rome). 
The following drafting is provisionally suggested : 


ARTICLE 25 


The High Contracting Parties further agree to carry out 
through the instrumentality of the League any other functions 
which may be entrusted to the League by the treaties of peace, 
and to promote through the same instrumentality the common 
study and regulation of important economic, sanitary or other 
similar problems. 


ARTICLE 26 


The High Contracting Parties agree to place under the 
control of the League all international bureaux already estab- 
lished by general treaties if the parties to such treaties consent. 
Furthermore, they agree that all such international bureaux to 
be constituted in future shall be placed under the supervision of 
the League and shall be located at the Seat of the League. 


Chapter 4 will simply include Article 22, which will now be- 
come Article 27. 


These proposals would have changed the form of the Cove- 
nant by dividing it into Chapters as well as Articles. I opposed 
this change at the morning session of the Committee and Wilson 
sustained my view; also the British would have completely recast 
the form of the Preamble. This also Wilson specifically dis- 
approved. 

During the luncheon interval between the morning and after- 
noon sessions of the Drafting Committee, I saw President Wil- 
son at the Quai d’Orsay. My Diary contains the following note 
of the conversation: 


President Wilson came in with M. Pichon, and I tried to see 
him then, not knowing that it was a ceremonial entry, but the 
President said that he would come out in a moment and talk to 
me, which he did. I then told the President very briefly what 
Lord Robert Cecil had said, and I told him also that it was pro- 
posed to amend the Preamble very extensively and asked him his 


220 THE DRAFTING OF THE COVENANT 


view on that, to which he replied that he did not favor it. He 
thought that it would be a mistake, and I told him that I would 
communicate that to the Committee of Four. I told him also 
that I had taken the responsibility of disapproving the suggestion 
in the morning of dividing the Covenant into chapters and articles, 
and he approved of my course. I then told him that the question 
of time was very pressing and asked him what plans he wished 
regarding the presentation of the final text. He said that if pos- 
sible, he would like to have it tomorrow, but that he did not intend 
to go before the Plenary Conference, but rather to ask for the 
appointment of a sub-commission to lay the matter before the 
neutrals. I told the President that I would do my best to see 
that his wishes were carried out, and then proceeded again to the 
meeting of the Committee of Four, at which I was late. The Com- 
mittee proceeded with its revision, and I informed them of the 
views of the President regarding the Preamble, and also of his 
intentions regarding the sub-commission. 


Wilson later decided on a different procedure as to the “‘final’”’ 
text and laid it before the Plenary Session of the Peace Confer- 
ence on February 14. 

One important amendment suggested by the British paper 
was the creation of what was called a “Representative Assembly,” 
to be elected by the legislatures of the Members of the League and 
to be a third organ of the League in addition to the Council and 
the Assembly. This was really Smuts’ idea so far as the British 
were concerned and he brought it up on February 13, at the Ninth 
Meeting of the Commission. I shall discuss it more fully later.* 
It was not adopted by the Drafting Committee whose report on 
the proposal damned it with faint praise. 

Other British proposals of consequence were in the line of 
extending the humanitarian activities of the League and the put- 
ting under the control of the League international bureaus in 
general. The latter the Drafting Committee adopted as Article 
23 of the new text (now Article 24) ; the former was passed over, 
but finally became in substance a part of what is now Article 23. 

It may be well to mention here the few changes in the Cove- 
nant which were made by the Drafting Committee, not previously 
discussed, and aside from those which may be called merely draft- 
ing changes in the strict sense. 

The title “Secretary General’ was adopted instead of “Chan- 
cellor.”’ Curiously enough I have at times found some misappre- 
hension as to the meaning of the expression “‘Secretary General.” 


+See Chapter xx1I. 


THE FEBRUARY DRAFTING COMMITTEE 221 


Of course it means nothing more nor less than General Secre- 
tary, the adjective being placed after the noun as in the French. 

Article 6 regarding admission of members of the League (7 
in the new text) was somewhat recast, in view of the amend- 
ment offered by the French ;1 the language of the Article for dis- 
armament (8 in both texts) was revised and the Council at one 
point was substituted for the Assembly.’ 

Into Article 10 were introduced the words “or in case of any 
threat or danger of such aggression.” 

The “‘religious” Article (21 in the new draft) was recast; but 
the Drafting Committee recommended its omission, saying in 
its report (Article 19): 


The Committee feel that, in view of the complications of this 
question, it would be preferable to omit this article altogether. If, 
however, there is a strong feeling in the Commission that some 
such provision should be inserted, they suggest the following draft- 
ing: 

The High Contracting Parties agree that they will not pro- 
hibit or interfere with the free exercise of any creed, religion 
or belief whose practices are not inconsistent with public order 
or public morals, and that no person within their respective 
jurisdictions shall be molested in life, liberty or the pursuit of 
happiness by reason of his adherence to any such creed, re- 
ligion or belief. 


Thus it can hardly be said that the Drafting Committee made 
any serious changes. It clarified the text somewhat and disposed 
of the pending amendments, although one proposal, as to Article 
8, was reported without recommendation and appears in the text 
in a parenthesis. This was the Portugese amendment, to add to 
the second paragraph the words: 


due regard being paid in such recommendations to the necessities 
of those countries which are not able to manufacture for them- 
selves the munitions necessary for their safety. 


Questions of the final wording were really left to Mr. Hurst 
and myself. An instance of this is that the Drafting Committee 
Report, in Article 24 (called by its old number 21), used the ex- 
pression “every future treaty or international engagement” which 
Hurst and I changed to “every treaty or international engage- 

* For the text see p. 206 sq. 


This was really changed after the meeting of the Drafting Committee, as 
will be seen. 


222 THE DRAFTING OF THE COVENANT 


ment entered into hereafter”; and I shall mention below the 
changes that I agreed to with Lord Eustace Percy. 

In fact the Report of the Drafting Committee (Annex 1 to 
the English minutes of the Ninth Meeting) represents the work 
of that Committee at the time it adjourned and does not really 
take account of the changes made after it adjourned. Thus, as 
stated above, the numbers of the Articles in that Report are the 
earlier numbers, not the numbers of the Articles in the text of the 
Committee; these had been somewhat rearranged by Hurst and 
myself after the Drafting Committee adjourned. 

The Drafting Committee got through with its work on the 
text at five o’clock in the afternoon (February 12), but left 
clerical changes, including questions of rearrangement to Hurst 
and myself; he and I went on for three hours more. Hurst 
wanted to recast the Mandates Article (now 22) which became 
Ig in the new text, but to this I could not agree; so the changes 
made by us were slight and need not be mentioned in detail. Any 
one interested in seeing exactly what they were may ferret them 
out by a comparison of the English text which went to the Draft- 
ing Committee with the Report of that Committee and the new 
text, taking into account the following two or three paragraphs 
of this narrative. 

Later in the evening over the telephone I agreed to some 
further minor changes with Lord Eustace Percy and during the 
night the proof-reading brought about one or two more of an 
entirely trivial character. None of these is in itself of sufficient 
importance to record; but for another purpose, namely, to show 
the care with which the record of the text was kept, I print two 
papers in connection with them. 

The first is a note made at the time of the agreement over the 
telephone with Percy: 


1. Preamble. Strike out “the use of armed force” and insert 


2. Article v, second paragraph, strike out “as secretary,” and 
insert “in that capacity.” 

3. Article xx1t1, strike out “and shall be located at the seat 
of the league.” 1 

4. Article vir, first paragraph, strike out “Body of Dele- 
gates,” and insert “Executive Council.” ? 


* These words were at the end of the Article. 
*j.e. as the last two words of the paragraph, 


THE FEBRUARY DRAFTING COMMITTEE 223 


5. Article vim, third paragraph, after the word “conceal” 
insert “from each other.” 

6. Article vu, third paragraph, insert after the words “pur- 
poses” the following “or the scale of their armaments,” and later 
on in the same paragraph strike out the words “the scale of their 
armaments and.” } 

Percy said over the phone that Lord Robert Cecil would an- 
nounce in the meeting tomorrow that the changes in Article vir 
had been made this way at his request, so as to clear me from 
exceeding my authority in the matter. 


February 12, I919—10:30 P.M. 


The second is my letter to Hurst of February 13, which lists 
the changes made during the proof-reading: 


Herewith are six copies of the latest text of the Covenant. 
It is in accord with the Text agreed upon by us at our conference 
last evening, with the following exceptions: 


(a) The changes agreed upon between Lord Eustace Percy 
and myself over the telephone of which he has doubtless in- 
formed you. 

(b) In Article 111, I have changed the position of a comma, 
and in Article Iv, I have added at the end of the Article the 
words “of America.” 

(c) A comma has been inserted in the last paragraph of 
Article xvi. 

(d) Uniform spelling has been adopted for “Mandatary,” 
as a noun, and “Mandatory,” as an adjective.? 


The printing of the English text from the Drafting Com- 
mittee,* including the changes noted above, was completed at the 
American Printing Office a little after five o’clock in the morning 
(February 13). At the same time, an equivalent French text was 
prepared, which was typed and mimeographed. 

While my records say very little about it, there is no doubt 
that this French text was prepared by the French, probably by 
de Lapradelle, although I cannot be positive as to this. 

It is necessary to say something in detail about this French 
text, which was intended to be the equivalent of the English text 
of the Covenant from the Drafting Committee. As I said above, 


*These words came after the words “as to.” 

* While this was the spelling in the print made under my direction, it was 
not finally accepted, for “Mandatory” is used throughout. 

* Annex 2 to the English minutes of the Ninth Meeting of the Commission. 


224 THE DRAFTING OF THE COVENANT 


this English text is Annex 2 to the English minutes of the Ninth 
Meeting. In the French minutes there is no corresponding An- 
nex; instead of this, the French minutes of the Ninth and Tenth 
Meetings preface the discussion of each Article by saying that 
Wilson or Cecil read} the text of the Article, which then follows 
in French. Now, these Articles as thus set forth are generally 
the same as the French text which was actually before the two 
meetings of the Commission. There are, however, certain dis- 
crepancies in the text thus given in the French minutes, and the 
Preamble is omitted. All these differences have been noted in 
footnotes in the French minutes of the Ninth and Tenth Meet- 
ings in Document 20, so as to show the French text before these 
two meetings, which I will call the French Text from the Draft- 
ing Committee. 

As may be seen by comparing this French Text from the 
Drafting Committee with the translations of the various Articles 
previously circulated, it is an edition of the French text which is 
almost entirely revised and almost wholly new. Its style is 
French. Taking into account the few changes made by the Com- 
mission at its two meetings of February 13, it is substantially 
the French text laid before the Plenary Session of the Confer- 
ence on February 14. There was, however, in the meantime some 
revision of the French, even in unamended Arrticles.? 


* This reading of course was of the English text. 

? Examination of the footnotes to the French minutes of the Ninth and 
Tenth Meetings will disclose instances where this later revision is given as the 
text “read.” 


(CEVA DIR: XOX 
NINTH MEETING OF THE COMMISSION 


On February 13 the Commission on the League of Nations 
completed for the time being its work on the Covenant. There 
were two meetings on this day, the Ninth and Tenth. The pro- 
cedure was more formal than it had been previously. The Arti- 
cles were read one by one; amendments were proposed and where 
there was difference of opinion, votes were taken; and in several 
cases amendments were thus voted down. 

In the morning meeting, with Wilson in the Chair, the Com- 
mission got through with the Preamble and the first seven Arti- 
cles of the text from the Drafting Committee. Several of these 
(1, 4, 5 and 6) were passed without change or discussion. 

For the beginning of the Preamble, Larnaude proposed as an 
amendment language which would have condemned those respon- 
sible for the war and recognized the work of the Conferences of 
The Hague. 

The text of this proposal was as follows: 


Les Puissances signataires du présent pacte, unies dans un 
méme sentiment de réprobation vis-a-vis de ceux qui ont déchainé 
la guerre qui vient de se terminer, fermement décidés a en recher- 
cher toutes les responsabilités, voulant en méme temps établir les 
régles d’un droit international dont le but essentiel sera de ne 
permettre a la force armée d’intervenir que pour la défense du 
droit, de faire régner la justice entre les peuples et de maintenir 
le respect scrupuleux de la parole donnée, reprenant et develop- 
pant l’ceuvre commencée par la Conférence de La Haye..... 


The first words of this amendment were withdrawn; but its 
second part was pressed to a vote and rightly rejected.2_ The at- 
tempt to recognize the Hague Conferences in the Covenant was 
largely intended as a matter of compliment to Bourgeois; but to 
intimate that the Covenant was a continuation of what was done 
at The Hague would have been a very misleading kind of half 
truth. 


* Annex 2 to the English minutes of the Ninth Meeting of the Commission. 
"By a vote of 10 to 5. 


225 


226 THE DRAFTING OF THE COVENANT 


The discussion of Article 2 brought into clear view the dif- 
ference of opinion between Smuts and Cecil as to the advisa- 
bility of the “Representative Assembly” amendment; but as I 
shall consider this in another place + I do no more than mention 
it now. 

The discussion of the proposal of Smuts made it clear that 
the other members of the Commission were unanimous in be- 
lieving that the representatives of any State in the Assembly must 
be the free choice of the Government of that State. The debate 
had the direct result of putting into the Article an explicit state- 
ment that each member of the League had only one vote in the 
Assembly. It was suggested that “this goes without saying,” in 
reply to which Reis very aptly quoted Talleyrand to the effect 
that it would go much better if it were said;? and another point 
brought up was as to some limitation of the number of repre- 
sentatives of each country in the Assembly. After rejecting five 
as too many, the Commission agreed on three as the maximum; 
so these words were added to the Article: “Each of the High 
Contracting Parties shall have one vote, but may have not more 
than three representatives.” 

Article 3 brought up again the question of the composition of 
the Council. The debate resulted in a slight change of verbiage, 
so as to make it wholly clear that the choice to be made by the 
Assembly was a choice of the four Members of the League to be 
represented on the Council in addition to the Great Powers, as 
distinguished from a choice of representatives.* 

This change was in the first paragraph of the Article and it 
is not mentioned in the Minutes. In the text from the Drafting 
Committee the first sentence of Article 3 read thus: 


The Executive Council shall consist of representatives of the 
United States of America, the British Empire, France, Italy and 
Japan, together with representatives of ....... other States 
members of the League appointed by the Body of Delegates on 
such principles and in such manner as they think fit. 


*See Chapter xx1t. 

* This is not in the minutes; see p. 235. 

*Cf. Article 2 of the Hurst-Miller Draft, Annex 1 to the minutes of the 
First Meeting of the Commission, where the language was “not more than 
two representatives.” 

“See the remarks of Pess6a quoted in the minutes. Grammatically, the 
question was whether “appointed” (French “nommés”) qualified “representa- 
tives” or “Members of the League.” The language was intended to mean the 
latter; but the other sense was at least arguable. 


NINTH MEETING OF THE COMMISSION 227 


The change which was made put a full stop after “League” 
with this sentence to follow: 


The selection of these four States shall be made by the Body 
of Delegates on such principles and in such manner as they think 
fit. 


That there should be four such non-permanent Members 
finally received unanimous assent; the Small Powers had carried 
their point. Furthermore the filling up of the blank where these 
four Powers were in the first instance to be named was left to 
the Peace Conference. 

The question of the composition of the League itself was 
raised in the debate on Article 7. How were the neutrals to 
come into the League? That generally they should be asked to 
join was conceded; that they would not be Signatories to the 
Treaty of Peace and thus to the Covenant was obvious. 

As reported by the Drafting Committee, the first paragraph 
of Article 7 read thus: 


Admission to the League of States not signatory of the Covenant 
requires the assent of not less than two-thirds of the States repre- 
sented in the Body of Delegates, and shall be limited to free coun- 
tries, including Dominions and Colonies. 


The discussion took a very wide range. Cecil again men- 
tioned the fact that India would come in as a Signatory, to which 
Wilson assented. Reference was made to the neutrality of 
Switzerland and even to Abyssinia; in fact there were certain 
neutrals such as Mexico and Costa Rica with which some of the 
Powers did not then have diplomatic relations. No allusion was 
made to these and nothing was said as to just when and how the 
list of the invited neutrals would be made up. But a clause pro- 
viding for their invitation by name in a Protocol to the Covenant 
was inserted, as proposed by Cecil. 

There are here some differences between the English and 
French minutes. One of these which is specially noticeable will 
best be seen by parallel citations of the corresponding expressions : 


ENGLISH FRENCH 
Following an exchange of A la suite d’observations 
views between Mr. Hymans, échangées entre M. Hymans 


Mr. Larnaude and Mr. Orlando, (Belgique), Larnaude (France) 


228 THE DRAFTING OF THE COVENANT 


Mr. Bourgeois recalled the fact et Orlando (Italie), et Lord 

that the scheme of the League Robert Cecil (Empire britan- 

embraced three stages. .. . mique), il est entendu que le 
protocole d’invitation n’entrera 
en vigeur qu’ aprés la signature 
du traité de paix. 

M. Léon Bourgeois (France) 
rapelle que l’on a prévu trois 
phases dans 1’étude de la So- 
Clete) ce 


The meaning of the interpolation in the French minutes is 
obscure; and, whatever it may be, it is, in my opinion, a late 
addition to the minutes, representing nothing that actually took 
place. The internal evidence here is rather strong and it is con- 
firmed by the stenographic minutes of this meeting which I quote 
below * and which give no intimation whatever of any such under- 
standing as is recited in the French minutes. 

But there was also to be considered the case of States neither 
Signatories to the Covenant nor invited in the first instance to 
join the League. And here there was an interesting discussion 
of the real meaning of “fully self-governing countries” and of 
the French equivalent of that expression. In the earlier draft, 
the words “self-governing States” had been used in the English; ? 
in the text reported by the Drafting Committee were the words 
“free countries” or, in the French, “‘pays libres,” which, as Lar- 
naude pointed out, was less accurate. So the wording was 
changed in the English to “fully self-governing countries,” which 
is rather difficult to translate, but which the French for the time 
being called “pays de self-government total,” a strictly accurate 
equivalent perhaps; but to use it in the French would be a rather 
unfortunate admission that that language is not as wholly com- 
plete and precise as is generally supposed. The point was to come 
up again. 

So the first paragraph of Article 7, to which the discussion 
had been confined, came to read thus: 


Admission to the League of States not signatories to the 
Covenant and not named in the Protocol hereto as States to be 

’ invited to adhere to the Covenant, requires the assent of not less 
than two-thirds of the States represented in the Body of Delegates, 


*p. 229 sqq. } i 
7 See the minutes of the Third Meeting and p. 157 sq. 


NINTH MEETING OF THE COMMISSION 229 


and shall be limited to fully self-governing countries including 
Dominions and Colonies. 


With this the Ninth Meeting at one o’clock took an adjourn- 
ment to 3:30. As there was to be a Plenary Session of the Con- 
ference the next day (February 14), at which the Covenant was 
to be presented and for which a very large number of prints of 
the Covenant would be necessary, the text thus far passed, i.e., 
through Article 7, went to the American printers during the 
recess. 

The account in the minutes of this morning meeting of Feb- 
ruary 13 (Ninth Meeting of the Commission) is supplemented 
by a translation of a French stenographic report. While this is 
not complete, it gives much of the debate at length, and I print 
it here: 


The meeting began at 10:30 a.m. at the Hotel Crillon. 

M. Léon Bourgeois asked if the second reading was now to 
be begun and if definitive votes would be taken either on the text 
or on the amendments proposed to the text. 

President Wilson replied in the affirmative. 

M. Léon Bourgeois: If we are beginning a second reading 
we must have the right to propose amendments. There should be 
an opportunity to vote on our amendments and whether these are 
adopted or rejected, the result of the vote will be recorded in the 
proceés-verbal. 

M. Larnaude: In accordance with this procedure I request that 
we should vote first on my amendment. If it is rejected we will 
vote on the text which has been laid before us. 

This is the Preamble which I propose: 


“The powers signatory to the present pact, bound together 
in a common feeling of reprobation towards those who began 
the war which is just ended, firmly resolve to establish the 
responsibility therefor, desiring at the same time to lay down 
rules of an international law whose primary object shall be that 
of preventing the use of armed force except in the defense of 
the right and to establish the reign of justice among peoples 
and to maintain a scrupulous respect for international engage- 
ments, continuing and enlarging upon the work began by the 
Conference of the Hague * * *” 

The rest of the Preamble will stand without change. 


That is the text which I propose, I need not repeat the ex- 
planations which I have given nor the reasons for which the 


230 THE DRAFTING OF THE COVENANT 


sub-committee rejected my proposals. I ask the President to put 
my amendment to the vote. 

M. Reis: We are now making a covenant of union and fra- 
ternity for the present and for the future. I do not wish to see 
in this covenant any words which recall the terrible conditions of 
the war. Since all the powers of the east and of Europe including 
those who have been our enemies will one day join themselves 


to us in this covenant I should not like to see at the beginning of 
this covenant words which would recall our hatreds. 

M. Léon Bourgeois: There are two different points involved; 
on the one hand condemnation of those responsible for the war 
and on the other hand recognition of the work of the Hague. 

M. Reis: I agree with you so far as the work of the Hague 
is concerned. It is because your amendment refers to two differ- 
ent matters that I ask for the division of them. 

Lord Robert Cecil: The Commission considered that it was 
preferable from the point of view of nations who will enter later 
on into the League not to mention the Conference of the Hague. 
It seems to me better that the structure which we are now creat- 
ing should appear like a new thing and should not suffer from 
the criticisms which have been directed toward the work of earlier 
conferences. Personally, therefore, I should regret it if any allu- 
sion were made to the Hague much as I respect what was done 
there. 

The case is the same as with regard to the responsibility for 
the war. It is a controversial matter which it would be better 
not to introduce into our document in order not to make difficulties 
for states which have not participated in the war but who will in 
the future wish to join the League. 

M. Larnaude: In reply to the observation made just now by 
M. Reis may I say that I should not wish to introduce into the 
League any element of hatred for the future and therefore with- 
draw the first part of my amendment. 

M. Léon Bourgeois: I request that a vote be taken on the 
question of whether reference should be made to what has been 
done in the past by the States who are today associated in the 
work of giving force and coordination to the law. 

President Wilson: The first half of the amendment having 
been withdrawn I call for a vote upon the second part which refers 
to the work of the Hague Conference. (The amendment was re- 
jected by a vote of 10 to 5.) 

It was understood that this vote in no way indicated that the 
Commission condemned the ideas embodied in the amendment of 
M. Larnaude but that the Commission considered merely that it 
was inadvisable to introduce them into the text. 


NINTH MEETING OF THE COMMISSION 231 


ARTICLE I 


The President read this Article. 
There was no comment. 


ARTICLE II 


General Smuts: I very much fear that public opinion will be 
greatly disappointed by this Article inasmuch as it anxiously de- 
sires to be represented. There should be in this assembly not only 
official and permanent representatives, but also representatives 
chosen out of the legislative assemblies or political parties of the 
states in accordance with rules which should later be laid down. 


For the sake of satisfying public opinion I propose the follow- 
ing amendment: 1 


M. Larnaude: I should like Lord Robert Cecil to give us a 
back-ground for the discussion of this proposition. 

Lord Robert Cecil: I am afraid that the proposition which 
has been put before us will not satisfy public opinion. In any event 
there is no occasion to make a change in the project until public 
opinion shall have been able to grasp it and until it has been able to 
announce its attitude with regard to it. For the time being the 
drafting committee does not think that it is necessary to change the 
project; it is much better to wait until we are more clearly in- 
formed as to what public opinion desires and until the Conference 
shall have been apprised of it in a plenary session. 

M. Larnaude: I believe that Article 11 is satisfactory to Gen- 
eral Smuts. According to this Article no restrictions are laid 
down concerning the choice of representatives. It is not necessary 
that the choice fall upon an Ambassador or upon a Minister. It 
may just as well fall upon a member of parliament or even upon 
a representative of some large peace association. I believe that 
General Smuts is influenced by the thought, that in the original 
text, the way was open only for Ambassadors and Ministers but 
when we say “representatives” we are allowing the government 
to choose them as it will. 

President Wilson: The plain people and the working classes 
who have seen into what they have been led in the war by gov- 
ernments are made anxious by the thought that they will not be 
represented in this assembly. The number of representatives is 
not definitely fixed and it would be a good thing to fix upon a 
scheme which would allow the common people to feel that they 
will be given definite representation; but it is substantially impos- 
sible to satisfy the popular demand inasmuch as the people would 
not be able to have more than one or two representatives whereas 


1There is an omission here. The text of the proposed amendment is in 
the English minutes and also at p. 274. 


232 THE DRAFTING OF THE COVENANT 


the number of electors is very great particularly in certain coun- 
tries like the United States. 

Therefore I do not believe that there is occasion to change the 
Article as it stands, for it contains sufficient flexibility for the in- 
troduction, later on, of a system entirely satisfactory to public 
opinion. 

M. Hymans: The President has just said that inasmuch as the 
text of the Article provides for representatives without fixing 
their number, it would be permissible for each state to be repre- 
sented by whatever number it might think advisable. I should like 
to call attention to certain inconveniences in this scheme. 

In my opinion it is necessary to lay down a general rule. If 
not you will see one state represented by a group of very ener- 
getic, influential and passionate men whose number will not stand 
in proper relation to its national position and you will see another 
state which will be represented by only one or two delegates, so 
that by the very nature of things, aside from the question of 
voting power you will come to the point of a definite split. More- 
over since each state has only one vote extremely complex prob- 
lems will arise. When the moment of voting comes, if you have a 
group of individuals corresponding to various divisions of popula- 
tions which in our western countries correspond to political nations, 
(?) and there will constantly result from it battles and conflicts 
which will seriously complicate matters. 

From another point of view (and although I am a parlia- 
mentarian myself) I should like to make the following objection: 
this assembly of an international parliament will be a beautiful 
audience indeed. There is not a parliamentarian, there is not a 
party leader, there is not an orator in all of the parliaments of the 
world who will not have the ambition to sit in this great inter- 
national parliament and make a speech, and I believe that instead 
of having a dignified and serious minded assembly you will have 
a big unwieldy parliament before which will be brought all sorts 
of questions, where every political party will try to realize its ideal 
and to announce to the world its platform. For these reasons I 
am of the opinion that only inconveniences can come from this 
proposal. 

I should like to point out moreover one difficulty concerning 
the representation of working classes. 

In the society in which we live today, in our countries where 
suffrage is universal, it may clearly be presumed that the man 
who is nominated by his government to represent it will put before 
the General Assembly the expression of his country’s will, of 
public opinion and the opinion of all the classes of his country. 
If he does not all kinds of troubles will arise, I take my own 
country, Belgium, as an illustration. We have there a class which 


NINTH MEETING OF THE COMMISSION 233 


is engaged upon industrial work and which is almost equal in 
number to the class which is engaged upon agricultural, but these 
classes make up two absolutely different worlds, and if a repre- 
sentative is given to the purely industrial class the agricultural 
class will protest loudly, and there will be much the same sort of 
thing in many other countries. 

Moreover as a practical matter you realize that in the working 
world properly so-called many trade unions organizations in certain 
countries at least have at the same time a political character. A 
trade union comes under the egis of a certain political party. I 
have even noticed the fact in Paris where I called together the 
technical delegates from my country in order that they might give 
me their advice upon certain questions of international legislation 
regarding labor. At once the delegates of another party found 
fault with me because I had neglected to give an adequate repre- 
sentation to their party. Nothing is more difficult than to plan 
a scheme of adequate representation. At the danger of appear- 
ing too conservative, I believe that we can later say what ought to 
be done but that for the time being we ought to adhere to what 
we have decided upon. Let us first of all make the experiment, 
never forgetting that governments have responsibilities but that 
political parties have not. 

M. Veniselos: Article xx looks toward the establishment of 
a Bureau of Labor. Do you agree to it? 

M. Hymans: It is a matter for the Commission on Interna- 
tional Legislation to create a regular labor conference. 

Lord Robert Cecil: Each power may be represented as it sees 
fit. It is right to leave to it the responsibility of making the 
choice. In England, for example, it is likely that we would send 
one of the leaders of the Labor Party, a representative of religious 
interests, and, I hope, a woman. As for the number of repre- 
sentatives for each state, . . . that question may be decided by the 
Body of Delegates itself. 

President Wilson: Every government which will be a member 
of the League is a responsible government and if it does not satisfy 
public opinion, it will be subject to criticism and so compelled to 
choose representatives who will satisfy public opinion. 

M. Léon Bourgeois: We are told to look at this from a prac- 
tical point of view. I am impressed by the remarks made by M. 
Hymans on the inconveniences which may arise from admitting 
a large number of people into this assembly and from carrying 
on in that assembly discussions on which the Associated countries 
are themselves internationally divided. I believe that if we de- 
sire to give authority to the decisions of the Body of Delegates, 
it follows that each Government which, itself, is responsible as 
Lord Robert Cecil has said, should be represented by somebody 


234 THE DRAFTING OF THE COVENANT 


who represents it in reality. It is necessary, however, that it 
designate the man who is to represent it in the Body of Delegates. 
Unless that is done, when the meeting comes to count the votes, 
you will have in each State divisions which will prevent the com- 
mon will of the represented States from being expressed. We 
have insisted that among the conditions which we wish to impose 
upon the States which should have the right to become a member 
of the League of Nations, the word “responsibility” should figure. 
President Wilson has justly said that the Governments must be 
considered as being responsible. The idea of responsibility, there- 
fore, runs through the whole matter. Since the Government is 
responsible it should make its choice, and having made this choice, 
it should come to an understanding with the internal parties of 
the country that its representative should express the will of the 
najority of its citizens. If later on, the majority should become 
a minority, there will be a new representative who will represent 
the new majority; but it is imperative, that, at a given moment 
each one of the Governments shall be able to say: There is my 
delegate and my delegate at the present moment represents the 
prevailing opinion of the majority of my citizens. The Govern- 
ment is responsible; and if it takes the wrong attitude it will be 
overthrown in its own country. 

It is necessary that this important matter of free choice of 
representatives should appear in this article. Moreover to respond 
to the idea of equality which is in everyone’s heart, we should 
say, “of all the High Contracting Parties” instead of simply “the 
High Contracting Parties.” 

M. Hymans: Lord Robert Cecil has introduced us to an ideal 
system of representation,—that of nominating the two or three 
most capable men at a given moment. Once you have laid down 
the principle of a number of representatives, immediately public 
opinion will act upon it and in place of having a parliament which 
will meet every three or four years, you will end up by having an 
international parliament holding annual meetings. Inasmuch as 
all parties will be represented there will always be some who will 
say, “this question must be brought before the League of Nations” 
and each party will seek the vote of the League. I am speaking, 
I recognize perfectly well, for countries on the Continent whose 
life is made up of parties. Last of all elections will take place, 
and the international parliament will end up by no longer carry- 
ing out the idea which prevailed when it was first conceived. 

M. Larnaude: Are you asking that the number of members of 
the parliament be limited? 

M. Orlando: The question raised by M. Hymans may be 
divided into two separate points: 

First of all we must know whether the States shall have the 


NINTH MEETING OF THE COMMISSION 235 


same number of representatives. I do not believe that there is 
any difference of opinion in this matter. The States must have 
the same number of representatives for without this (I am making 
a paradoxical assumption) a State will have five representatives 
and will have only one voice ;—a situation which will upset the 
balance of the League, I believe, therefore, that it is understood 
that the States shall have the same number of representatives. 

M. Léon Bourgeois: It must be so expressed. 

M. Orlando: The second point is that we must know whether 
the number of these representatives is to be determined in advance. 

I believe that this is not necessary. It is largely a question 
of detail which can be settled as a matter of administrative prac- 
tice (?). The number of representatives can be settled upon ac- 
cording to the importance and the kind of questions in controversy. 
It will not be necessary to send five representatives to sit at a 
meeting when the agenda is brief and when only questions of pro- 
cedure of a wholly secondary importance are to be discussed. 

As for the issue raised by General Smuts I beg my colleagues 
not to insist upon it. According to my view, it is important to 
know whether the members of the League shall be or shall not be 
the representatives of the several states. Every other question 
depends upon that. It is an entirely different question from that 
of knowing whether a state will prefer to select its representatives 
from one group or another. At this very moment there are cer- 
tain deputies making this statement about me; that I go to Paris 
yet at the same time I continue to vote against them in the assembly. 
I say to them, “of course.” 

It is impossible for a state like Italy, for example, to be repre- 
sented by two people one of whom supports the government while 
the other opposes it. 

M. Larnaude: There must be freedom of choice. 

M. Orlando: Absolute freedom of choice. 

M. Larnaude: The governments exercise their power of choice 
on their own responsibility. They are free to be represented by 
somebody who is not of their opinion. Would it not be possible, 
however, to set limits to the maximum number of representatives. 

M. Orlando: The maximum might be fixed at five. 

M. Scialoja: It must be stated that these five members will 
have only one vote. 

Lord Robert Cecil: That is the practice in every international 
convention. It goes without saying. 

M. Reis: Allow me to remind you of what Talleyrand said 


to someone who remarked to him “that goes without saying.” He “~~ 


replied “Yes, it goes without saying, but it goes very much better 
if you do say it.” 
M. Léon Bourgeois: Each High Contracting Party has only 


—s 


i 


236 THE DRAFTING OF THE COVENANT 


one vote but it may be represented by a maximum of five persons. 

M. Vesnitch: This new development causes me a certain 
amount of uneasiness. I am afraid that by increasing the num- 
ber of representatives, the discussions will not be bettered. 

President Wilson: After a little time speech-making before the 
League will lose its attractiveness. 

M. Larnaude: We should take into account the parliamentary 
rules which will be established and which as they say in America 
will act as a guillotine to discussion. 

M. Léon Bourgeois: I propose that the maximum number be 
fixed at three. 

M. Larnaude: I agree to this reduction. 

President Wilson: I will put to the vote the proposal to fix 
the maximum of representatives for each Contracting Party at 
five. 

(The proposal was rejected.) 

President Wilson: Consequently the maximum number of 
representatives is fixed at three. 


ARTICLE III 


President Wilson: I will read Article m1. 

M. Orlando:' I have a slight suggestion to make with regard 
to the wording. In the French text—I do not know whether the 
same difficulty appears in the English text. It is said that “That 
the proposal * * * may be referred not only to the representa- 
tives of the four states members of the League, but to all the 
representatives equally.” There is an ambiguity which must be 
cleared up. It is necessary to say:? 

General Smuts asked whether the neutral powers who will 
later adhere to the Covenant should be considered as original 
signatories to the covenant or as subsequent adherents to the pact. 
In the latter case they would be subjected to the necessity of being 
admitted by a majority of two-thirds. Would such a condition 
not effectually prevent their adherence? 

President Wilson replied that the League was formed by the 
powers who had fought together during the war. But that the 
conditions of admission for the other states would not be of a 
kind to frighten away those who fulfil the requirements, and who 
loyally desire to co-operate with the League of Nations. 

M. Orlando: General Smuts’ objection should be taken into 
consideration. There are neutrals whose situation is difficult. 
There are some of them who are not sympathetic inasmuch as 
they have made profit out of the war and have maintained an 


*The statement here is so jumbled in translation or otherwise as to be 
meaningless. There is nothing in the minutes or elsewhere which explains it. 

* There is an omission here. The following discussion relates to Article 
7h 


NINTH MEETING OF THE COMMISSION 237 


egotist attitude. There are others, however, who have nobly done 
their duty and have kept their neutrality at the same time— 
Switzerland, for example. Had she not remained neutral serious 
consequences would have ensued. If she had permitted the Ger- 
mans to pass through her territory, they would have reached 
Milan. Similarly it was a most threatening situation for France. 
Consequently there are neutrals whom we can invite to join the 
League of Nations. 

President Wilson: Here is a new suggestion made by Lord 
Robert Cecil on this matter: That there be added at the begin- 
ning of Article vu, after the words “the admission to the League 
of states not signatory to the present covenant,” the words “and 
not named in the protocol hereto as states to be invited to adhere 
to the covenant.” 

As a matter of fact it would be most difficult to draw up a 
true list and draw distinction between the neutral states. 

M. Léon Bourgeois: The Conference at the Quai d’Orsay 
will perhaps not be happy in having to decide such delicate ques- 
tions which may create differences of view. However, it is im- 
portant that the Conference proceed to the end of its work in a 
spirit of most complete harmony, without any cause of disagree- 
ment coming to life. The idea expressed by M. Orlando is right 
and I agree with it. There are certain states to be invited, but it 
is necessary therefore that the treaty of peace be signed first of 
all and that the labors of the Conference be concluded. Nego- 
tiations along that line may be opened but to give the Conference 
the duty of drawing up a list of states which shall be invited is 
to present them with a dangerous gift; very much like the golden 
apples of the Garden of the Hesperides which were dropped along 
the road and which delayed the progress of the knight. 

M. Diamandy: Don’t you think that the fact of inviting cer- 
tain states to the exclusion of others will change the character 
of the Conference? There is no need for drawing distinctions 
among those who will later join the League of Nations. 

Lord Robert Cecil: All neutrals should be invited without 
discrimination. 

M. Hymans: The only danger would be that of permitting 
them to join in the work of the Conference itself. 

Lord Robert Cecil: They will not be associated with us. They 
will be invited when the Conference shall have ended its labors. 

M. Léon Bourgeois: Suppose that one of the states which has 
been invited refuses to accept the invitation. I select an illustra- 
tion in which no one could discover any kind of hostile feeling, 
since it is concerned with a state we love and for whom we have 
the highest regard. I refer to Switzerland. The President of the 
Swiss Republic came to Paris and we all talked with him. Swiss 


238 THE DRAFTING OF THE COVENANT 


people are tremendously interested in the problem of neutrality. 
They are not inclined to enter into the League of Nations unless 
it be admitted that their neutrality lasts on. Since we have ac- 
cepted the principle that neutrality disappears within the Society 
of Nations, the people of Switzerland see a real danger to their 
independence and to their long standing traditions if they enter 
into the League unconditionally. 

There is a complete difference of view between our Belgian 
friends and our friends from Switzerland. Belgium does not 
wish to see neutrality continue to exist while Switzerland strives 
to maintain it. I believe that the League should be open to all 
nations who fulfil the requirements, but I believe that it is far 
better not to draw up an invitation list. 

M. Larnaude: Originally according to our plan all states had 
to submit to a two-thirds majority vote. Now another idea is 
introduced. There are some states who are subjected to the vote 
of a two-thirds majority; there are others who are not so sub- 
jected. It is well and good enough to invite them but who will do 
the inviting ? 

M. Hymans: As a matter of fact all neutral states will be 
admitted to the League by the agreement of all of us. Therefore 
there is no question for discussion in this regard. The provisions 
for a two-thirds majority may therefore be disregarded. 

M. Orlando: It may be said that, to speak frankly, there exists 
a certain uneasiness among the neutrals. 

M. Hymans: Some neutrals have not taken part in the war. 
On the contrary they have made a profit out of it. 

M. Orlando: All of them have not made a profit out of it, 
and the kind of examination which they will have to go through 
before being admitted into the League of Nations is calculated to 
upset the self-esteem of certain of them. It is a question of 
political handling and tactics, for we all agree that they should be 
taken in. The admission of certain neutrals will receive the unani- 
mous approval of the members of the Body of Delegates; but 
when the question arises of admitting Germany or Bulgaria, the 
issue will be scrutinized more closely. 

M. Kramar: According to the text we cannot discriminate be- 
tween them if they are invited. I believe that that is M. Orlan- 
do’s view when he says that if the Council issues an invitation, it 
must be done unanimously. 

Lord Robert Cecil: The main idea is not to discourage neu- 
trals and the best scheme for accomplishing this effect is to 
publish a protocol giving by name the states who are to be in- 
vited to adhere to the League. This protocol will not have to be 
effective until after the signature of the treaty of peace. 

M. Hymans: It is quite necessary, in fact, that the neutrals 


NINTH MEETING OF THE COMMISSION 239 


should not participate in our labors before the conclusion of peace. 

M. Orlando: We are in agreement on that. 

M. Léon Bourgeois: Before the opening of the Conference it 
was said that the Allies would determine among themselves the 
conditions upon which the League of Nations should be organized 
and its guiding principles. That is what we Allies are now doing. 
We must stand together. That is the first step. 

The second step consists in inserting into the treaty of peace 
certain stipulations such as that of the limitation of armaments 
or of disarmament itself. 

The third step, so far as the Allies are concerned, will consist 
in summoning, immediately after the treaty of peace, a general 
conference in order to establish the same rules among all the 
states invited to adhere to the League of Nations. And it may 
be added: “After the claims and guarantees presented by various 
states have been examined and found satisfactory this Confer- 
ence will vote on the question of admitting each of them into the 
League of Nations.” 

There is no question of opening the doors of the League of 
Nations to those who are not worthy to come in. A declaration 
would be issued saying that the League was open to all those 
who satisfied the conditions laid down. That would be tantamount 
to an invitation and would obviate the necessity of making a 
choice. 

M. Larnaude: Plans for an universal conference are beside 
the point in view of facts and events. The question as it is put 
up to us is a political question of highest importance. It must be 
determined whether we who are establishing the League of Na- 
tions desire to invite immediately such states as have remained 
neutral, but whose institutions are similar to our own, who are 
friendly toward the Entente and who cannot conceivably be put 
on the same ground as Germany, Turkey and Bulgaria. It seems 
to me, as M. Hymans has said, that we cannot do that immediately. 
It is impossible. When will we take them into the League of 
Nations? After the treaty of peace, in some way or another, per- 
haps pursuant to a protocol. I am not arguing for any specific 
procedure. But it does seem to me that it is necessary to elimi- 
nate the business of voting on countries like Switzerland and 
Norway, for example. I am of the opinion that we can say that 
they shall be admitted, if they desire, with full rights into the 
League of Nations. 

Lord Robert Cecil: I quite agree with you. 

M. Larnaude: With regard to the other states, the League is 
not closed to them, they are not shut out; but we subject them to 
certain conditions of admission which cannot be imposed upon 
neutrals. These restrictions apply only to Germany, Bulgaria, 


240 THE DRAFTING OF THE COVENANT 


Turkey and countries which are badly administered, not to use 
a more violent form of expression. Such a procedure will not 
astonish them. 

M. Léon Bourgeois: The invitation need not be made par- 
ticular. What I am opposed to is that the Conference should 
choose between such and such neutral states, inasmuch as that 
kind of thing is likely to make trouble. A general invitation should 
issue, directed to all those who have not been belligerents. 

M. Orlando: According to those conditions you would have 
to invite Abyssinia which is a neutral state but not a fully self- 
governing state. A choice must be made among them in order 
to carry out the conditions that they enjoy liberty. 

M. Larnaude: It is unthinkable that we should say to coun- 
tries like Switzerland and Norway or like Denmark which enjoy 
greater liberty than ourselves: “We are inclined to admit you 
into the League of Nations but it is first of all necessary that you 
enjoy full powers of self-government and that you give guaran- 
tees that you will loyally carry out your engagements.” Such a 
condition can only be imposed upon countries which have acted 
against every rule of law. 

For these reasons I ask that the article be retained. 

Lord Robert Cecil requested that his amendment be voted upon. 

The amendment was adopted. 

Article vir was thereupon adopted with this amendment. 

President Wilson: Inasmuch as I shall be unable to be pres- 
ent at this afternoon’s meeting I ask you to be good enough to 
continue your labors under the chairmanship of Lord Robert Cecil. 

The meeting adjourned at one o’clock to continue the discus- 
sion at 3:30 in the afternoon. 


Wilson was absent from the afternoon meeting of February 
13, the Tenth Meeting of the Commission, because, as he said, he 
had to go to the Council of Ten. 

That meeting of the Council of Ten was in fact largely occu- 
pied with Syrian questions; but it is appropriate to insert here 
what was there said regarding the Covenant and the Report of 
the Commission : 


President Wilson reported that the Committee to formulate 
plans for the League of Nations hoped to complete their labours 
that night. He wished to suggest, therefore, that a call be pre- 
pared for a Plenary Conference to be held tomorrow afternoon 
for the submission of the scheme and in order that full explana- 
tions might be given. The conclusions reached by the Commission 
would very quickly become generally known, and, therefore, in 


NINTH MEETING OF THE COMMISSION 241 


his opinion, the final draft should be placed at once before the 
Plenary Conference. He asked, therefore, that a notice be pre- 
pared for issue on the following morning, if the Commission’s 
‘report was then found to be ready for submission to the Plenary 
Conference. 

M. Clemenceau enquired whether it was not intended that 
the report should, in the first place, be submitted for considera- 
tion to the Conference of the Great Powers. According to Presi- 
dent Wilson’s proposal the Plenary Conference would receive the 
report before it had been examined by the present meeting. 

President Wilson replied that in the ordinary course of events 
the best plan would perhaps have been to circulate the Commis- 
sion’s report in the first place to the Conference of the Great 
Powers. He would point out, however, that the League of Na- 
tions Commission was not a Commission of the Conference of 
the Great Powers but of the Plenary Conference. Consequently, 
the first report ought, as a matter of fact, to go to the Plenary 
Conference. In accordance with his proposal the Plenary Confer- 
ence would be asked to receive the report, and the Chairman of 
the Commission would then give the necessary explanations. That 
is to say, the report would be submitted by himself, and some of 
his colleagues on the Commission would subsequently give addi- 
tional explanations. 

Mr. Balfour thought that it would be a great advantage if 
President Wilson could explain the scheme to the Plenary Con- 
ference before he left for the United States of America. He 
would do this as Chairman of the League of Nations Commission 
and not as a member of the Conference of the Great Powers. 
The members of the latter Conference would not be committed 
to the scheme in any way. He, therefore, saw no objection to 
President Wilson’s proposal. 

M. Clemenceau understood the proposal to be that the report 
of the League of Nations Commission would be presented to the 
Plenary Conference by its Chairman (President Wilson), who 
would give certain explanations, after which the Conference would 
adjourn. | 

President Wilson agreed that this was his proposal, though 
he did not quite know how other members of the Plenary Con- 
ference could be stopped from making speeches if they wished to 
do so. But in any case no decision would be taken. 

(It was agreed that a Plenary Conference should, if possible, 
be held at 3:30 on the afternoon of Friday, 14th February, 1919, 
in order to place before it the report of the League of Nations 
Commission. It was agreed that individual notices to this effect 
should be issued to each of the Delegates to the Peace Conference.) 


242 THE DRAFTING OF THE COVENANT 


Mr. Balfour’s remark above quoted to the effect that the 
members of the Conference of the Great Powers “would not be 
committed to the scheme in any way” seems rather extraordinary 
in view of the fact that all these Great Powers were represented 
on the Commission on the League of Nations, three of them by 
the heads of their delegations, Wilson, Orlando and Makino. 


CHAPTER XXI 
TENTH MEETING OF THE COMMISSION 


THE afternoon meeting of the Commission, its Tenth Meet- 
ing, with Cecil in the chair, began with a very long debate on the 
French amendments? to Articles 8 and g; these modified some- 
what the earlier French proposals,” but still contained the idea of 
an International General Staff. They were unacceptable and neces- 
sarily were voted down, the only concession made by Cecil being 
the insertion of a few words in Article 9; these made specific 
reference to the disarmament provision of Article 8 in connec- 
tion with the duties of the Permanent Military and Naval Com- 
mission so that Article g read: 


A permanent Commission shall be constituted to advise the 
League on the execution of the provisions of Article 8 and on 
military and naval questions generally. 


Nothing very new was said during a long and tiresome and 
confused discussion; in the course of it Kramar proposed to go 
back and amend Article 7 by adding words to the effect that the 
military terms imposed on Germany should not be affected by her 
future entry into the League.* This proposal was also rejected. 
The minutes contain the debate at some length; it is, however, 
more extensively reported in another paper which I have, a trans- 
lation of a French stenographic report of the speeches of the 
afternoon in French with notes taken by others of the remarks 
in English. The debate on these Articles, extracted from that 
paper, is here inserted: 


The meeting opened at 15h 30. 

The Chairman (reads Articles vii and 1x): Article vu 
has been changed in such a way that we now agree with the 
French and Portuguese delegates. 


*For their text, see p. 260. 
*See p. 207. 
*This is generally the effect of the Treaty of Versailles; see, however, 
Article 164. Germany is now in the League and, with League instead of 
Allied supervision, the military terms continue; though one may well doubt 
the permanence of this situation. 

“Of necessity there must be some lack of accuracy in a record so prepared. 


243 


244 THE DRAFTING OF THE COVENANT 


He adds that at the end of the first paragraph, the words 
“Executive Council” have been substituted for the words “As- 
sembly of Delegates,” * * * Answering a question put by Baron 
Makino, he states that the military and naval commission, though 
permanent, would be of an entirely provisional nature. 

General Smuts proposes to substitute the word “had” for the 
words “paid in such recommendations” which is found in the 
second paragraph of the Article. He suggests inserting the words 
“of war” after the word “munitions” at the end of the second 
paragraph. 

These amendments are adopted. 

M. Léon Bourgeois: There are no comments on the beginning 
of the article. 

The article ends thus, I read the French text: 


“The High Contracting Parties agree, moreover * * * of 
their military and naval programs.” 

In this paragraph I propose the following amendment: 

“The High Contracting Parties, resolved to afford each 
other frank and open information on the scope of their arma- 
ment and their military and naval programs, as well as on the 
condition of their industries capable of being adapted to war- 
fare, will establish a Commission to obtain the necessary data.”’ 


Do you not agree? We did not want to use the word “con- 
trole” again, because it had given rise to objections; but we were 
of the opinion, and we still are of the opinion, that, practically 
speaking, it is not sufficient just to give publicity, since publicity 
might be dangerous. 

M. Epitacio Pessoa: That is just the danger. 

M. Léon Bourgeois: It may be absolutely perilous for states 
to give publicity to preparations that may be quite within the 
limits and the spirit of the international agreement, and which 
do not need to be made known to the very persons against whom 
it may be necessary to exact suitable penalties. Thus we are 
of the opinion that this formula is a peril on the one hand, and, 
on the other, a trap. 

As to the verification between states of good faith, there is 
nothing hard about conceiving of one of them saying: “Here is 
what I am at work on,” then they will give some of the necessary 
data on the work they are doing, and the rest will do the same. 
We must establish a régime of mutual confidence based on a 
complete exchange of data among those who are getting ready to 
execute some common action tomorrow, some action which may 
be economic, but which may also become military. Thus we are 
all agreed if we add the following words to the wording of the 
Commission: “Will establish a commission to obtain the neces- 
sary data.” It is this idea of a mutual exchange of information, 


TENTH MEETING OF THE COMMISSION 245 


I do not wish to say “controlled,” since the word is forbidden, but 
verified by each one, which seems to me indispensable if we wish 
to give reality to the proposed measure. 

M. Larnaude: I wish to add one word as an appeal to logic: 
it seemed to us quite impossible, logically, that the means of con- 
trol itself, that the means of verification, would verify itself. And 
it seems a logical arrangement, and a sensible one, if the verifica- 
tion of armaments be made by others than the very persons who 
make the armaments, and who are actually bringing these con- 
structions into existence. That is the idea that lies at the bottom 
of our amendment. It is not possible, logically—and this seems 
to us something besides a question of pure, abstract, and formal 
logic—that states be left to the discretion of the good faith that we 
suppose exists in all that concerns the legality of our armament. 

We do not conceal from ourselves that this is a considerable 
modification in the text that was presented. We do not say that 
there is a right to control, to verify, to inspect; we say that there 
may be a commission to obtain the data made necessary by the 
manufacture of munitions which may be concealed. 

M. Léon Bourgeois: We are forced to look ahead to the time 
when the Society will extend to others than those who are to be 
its immediate members. The good faith that reigns among us, 
will it always reign among the other states that little by little will 
join the national organization? 

M. Larnaude: They can sign a unilateral promise. 

M. Léon Bourgeois: The idea of promises gives the idea of 
an exchange of information, and we wish to consider this neces- 
sary without injuring the autonomy, the independence, or the 
dignity of anybody; it is indispensable if we wish the limitation 
of armaments to be a reality. 

Chairman: I believe it is wise to see the extent to which this 
proposal of the French Delegates would carry us. 

Chairman: The French wording is clearer than the English 
wording in saying clearly that all this information will be ex- 
changed among the Allies. 

M. Jayme Batalha Reis: That is true. 

M. Larnaude: But we still believe that is not sufficient sim- 
ply to say that the High Contracting Parties agree not to con- 
ceal anything from each other, because this seems to us contrary 
to the very idea that is at the bottom of this control, this verifi- 
cation. We suspect no one. We repeat what M. Léon Bourgeois 
said. Namely, this verification does not seem to us, to us French, 
who are nevertheless regarded as very sensitive, does not seem to 
us a violation of our dignity. There is just one thing. If the 
commission is not of our opinion, let it say so; but we desire a 
vote on our amendment as it stands. 


246 THE DRAFTING OF THE COVENANT 


M. Léon Bourgeois: We have the highest regard and admira- 
tion for the commission on all its work in the other parts of the 
article. 

Chairman: Yesterday the Drafting Committee examined all 
the French amendments. We adopted almost all of them. I beg 
my French colleagues not to insist further. 

As to this question of verification, it is impossible without 
legislation; and I assure you that Parliament will never pass the 
legislation necessary to make it effective. 

This is not very encouraging. 

M. Léon Bourgeois: Mr. Chairman, we act here as each of us 
believes he should act. Please note that we are in a somewhat 
delicate situation, for we are always in the position of discussing 
a text that was never our own. We can act only by amending 
the text proposed by the Chair, and that gives our interruptions 
an aspect that I truly regret. If we had only had the French 
proposals on the one hand, and on the other the English and 
American, both side by side, we should have been able to com- 
pare the two texts; but, since we have before our eyes but the one 
text, which represents one of the two sides, an opinion that is en- 
tirely respectable and as such respected by us, we can intervene 
only by means of amendments. We do so with full liberty, since 
it is our duty to do so, and our right; we do so in a way and, 
in a feeling that should not be such as to disturb the union that 
must exist between us. If we did not call attention to the points 
that justify our apprehensions, we should fail of our duty. Now, 
what we apprehend is the publicity that has been arranged for, in 
that it seems to us dangerous. That is why we insist that the 
commission be consulted regarding our text. 

M. Diamandy: It is necessary that the exchange of informa- 
tion between the contracting parties be obligatory, and be carried 
out in good faith. 

M. Larnaude: We are obliged to take into consideration, 
as in that famous marriage contract where the question is always 
one of the death of one of the espoused, we are obliged to take 
into consideration that some time something will be concealed. 
How are you going to force a person who wishes to conceal some- 
thing, to exchange information? We have only one means of 
knowing what he is doing or what his neighbor is doing, and that 
is to establish a commission to obtain the necessary data; after 
that we must ascertain what the results of this data are. 

M. Kramar: I feel, and I say so frankly, like the French dele- 
gates, certain apprehension in this respect: the day that Germany 
is admitted into the Society we shall be obliged to depend on the 
good faith of Germany, and I believe I am not alone in having 
no confidence in such “good faith.” I am convinced that the 


TENTH MEETING OF THE COMMISSION 247 


French have no more confidence than I have. Between Allies, the 
control is not necessary; the Allies have no reason to conceal any- 
thing at all from each other, but one must be on the watch against 
Germany. I imagine that the peace treaty will contain special 
conditions regarding Germany, as to its manufacture of muni- 
tions, as to its armament, as to the importance of its standing 
army, and as to its control. 

Chairman: I imagine so too. 

M. Kramar: I know the Germans well, and I know that one 
can have no confidence in them. Already they are undertaking 
a campaign in their papers against the establishing of special con- 
ditions regarding them. 

M. Venizelos: I accept the amendment of M. Bourgeois, but 
we are face to face with internal difficulties; and I think it is the 
place to fill a want that seems to me dangerous. 

Article vit, which we have voted to adopt, provides the es- 
tablishing of a control not as regards ourselves, but as regards 
our enemies, and we look ahead to the day when we shall say to 
Germany on her demand to be admitted to the Society: “We 
should be glad to admit you, but we want the right to control 
your armament.” 

I shall go further. The compact that we are voting on does 
not exclude the possibility for the Society of Nations, if it be- 
lieves seriously that its provisions are being violated, to address 
itself directly to the party committing the violation, and warning it. 

M. Larnaude: M. Venizelos knows the treaty better per- 
haps than anyone else, and he has here brought in an idea of juris- 
prudence, that when a principle has been framed, it is not neces- 
sary to develop all its details; they will develop themselves. M. 
Venizelos says: There is an Article, Article viz, which is suf- 
ficiently general. 

M. Venizelos: No. It is special, concerning Germany. It 
aims at the states against whom we make war. 

' M. Larnaude: It is general in the sense that it aims not alone 
at the limitation of the manufacture of armaments; it aims at 
everything. 

M. Venizelos: It aims at “military and naval armaments.” 

M. Larnaude: That does not include manufactures, nor the 
control of manufactures. 

M. Venizelos: The Article aims at Germany. 

M. Larnaude: It aims at Germany in connection with its 
admission, but once Germany is admitted? 

M. Venizelos: We shall impose on Germany as a condition of 
admission the right of control. 

M. Larnaude: I was saying that M. Venizelos’ argument 
was an excellent argument in the sense that in all that concerns the 


248 THE DRAFTING OF THE COVENANT 


general state, we have some leverage. We admit that, but we think, 
in regard to this so important question, which we consider vital, 
of the limitation of military force, of the inspection of industries 
capable of being adapted to warfare, it is necessary to have a 
special provision. Quod abundat non viciat. From the moment 
that doubt exists, we ask that a special clause be inserted in the 
text. 

M. Venizelos: I am quite ready to adopt this amendment. 

M. Léon Bourgeois: I understand M. Venizelos perfectly; I 
know the difficulties that certain of us may meet in the political 
organization of our countries. We are endeavoring to reduce them 
to a minimum. But it seems to me impossible not to satisfy the 
fears of M. Kramar, and this is why. In an association, there 
cannot be checks and balances. When one enters into an associa- 
tion, all associates must have the same fulness of rights. You 
cannot say that good faith will be presumed in certain members 
of the Society, and that there shall be no control over them, while 
certain other members will be presumed guilty of bad faith, and 
over them there must be control. As regards those who will enter 
the Society later on, we shall impose severe conditions of admis- 
sion on them by the treaty of peace, especially, as regards the 
control of their armaments; but once they are admitted to the 
Society, you cannot maintain special and severe conditions re- 
garding them, which, after all, place them in a position of inferi- 
ority, so that they would have a right to complain. 

Up to the treaty of peace, we shall make them submit to all the 
conditions we deem necessary, but the day that our past is liquid- 
ated, they may begin again. I do not adopt a special, French point 
of view in saying this; I contemplate a point of view that is uni- 
versal, and that is the interest of the Society; and I am of the 
opinion that it is unwise to relieve those who some day will de- 
mand admission to the Society on an equal footing with all the 
world, from giving these indispensable guarantees in support of 
their declarations. 

I wish to add that I did not speak of a commission that would 
go round to these countries to do its verifying. We can leave 
to one side the form under which this verification will be carried 
out; this we leave to the arrangements of the international com- 
mittee; we do not prescribe any form; we do not use the word 
“inspection” ; we avoid the word “control”; we ask only for proof 
that the declarations are made in the general interest of the So- 
ciety. On grounds of independence and of dignity, certain coun- 
tries do not wish to have commissions visiting them, but we are 
obliged to foresee that certain states, even those that are in the 
Society, may fail in their agreements; if that were not the case, 
we would not have to make provisions against those who violate 
the compact. We all have good faith, but there may be some 


TENTH MEETING OF THE COMMISSION 249 


country who fails in the compact, whether it violates an article 
of the compact, or conceals its preparations. In what way do the 
steps that we have taken infringe on the independence of the one 
or the other of them? We have accepted these steps in order to 
have a minimum of guarantees, for it is indispensable that some 
verification be made. I shall not discuss this matter further. 

Colonel House: I am in accord with M. Bourgeois’s pro- 
posal ; but we are in the same position as are the British delegates. 
We pursued this course as far as possible yesterday. 

M. Kramar: I repeat that there is no necessity for a control 
for the Allies, but it must be provided for Germany. 

The President: In the interests of the discussion, it will be 
better not to consider more than one amendment at a time, and I 
request M. Kramar not to bring up his amendment until after 
that of the French delegates shall have been taken into con- 
sideration. 

M. Kramar: I propose that the following words be added to 
the Article: “Nevertheless, special conditions affecting military 
and naval forces, imposed by the Treaty of Peace upon any State, 
shall not be affected by its admission to the League.” If my 
amendment is accepted in principle, that of M. Bourgeois is no 
longer necessary. For my part, I am obliged to vote in favor of 
M. Bourgeois’ amendment. It is essential that all conditions of 
admission be determined in advance, so that there may be no 
complaint. 

M. Vesnitch: I should state that I am obliged to vote in favor 
of the wording adopted yesterday. By the wording of Articles 
8 and 9, the Committee has gratified the wish of the French, since 
we have established aside from the executive council a permanent 
commission to advise it. This permanent commission is abso- 
lutely indicated for furnishing information to the executive coun- 
cil. If the council is notified that something contrary to the clauses 
of the Society is going on in some country, the executive council 
will take measures. 

I wish to state in closing that I especially desire to avoid com- 
plicating the institutions which we are about to create. We have 
already established a military and naval commission, and I wonder 
if that is quite practical. I beg the representatives of France 
to consider that Article 9 gives them all the guarantees that they 
can (desire). (Word apparently omitted: Trans.) 

The President: All the military headquarters of Europe knew 
what Germany was doing. Nevertheless, it is not to be expected 
that the League of Nations will inaugurate such a complete intelli- 
gence system as most of our War Offices. They are highly skilled 
organizations ; and to set up a similar body under the zgis of the 
League of Nations would induce a false sense of security. 


250 THE DRAFTING OF THE COVENANT 


M. Larnaude: I had already heard it said that before the 
war every nation collected information as to what the other nations 
were doing, and that this will continue to take place after the 
war, and that under these conditions it is useless to establish an — 
official organ for this purpose, since governments will always 
have their own informers. In this connection, I am forced to cite 
an example of fact which is serious. 

When we were at our frontier, our headquarters staff believed : 
that there was a certain number of German divisions and army 
corps. Now it was found at the battle of Charleroi that this num- 
ber was exceeded by thirty divisions. : 


The President: Do you think that the Society of Nations 
would have done better? 


M. Larnaude: Yes, because it would have had certain powers. 

The President: What powers? 

M. Larnaude: We were surprised at Charleroi by a ca 
: 


ber of divisions which we could not foresee, which no one could 
foresee, with the result that we were overwhelmed by the number. — 
This gives the French food for thought. 

I wish now to reply to certain remarks made by M. Vesnitch 
or by Lord Robert Cecil. | 

I have always withheld, I recall to you, the opinion of my ; 
government on the two questions, that of concealing nothing and | 
that of the permanent army, which was abandoned in favor of a_ 
commission provided for under Article 9. I act only for my — 
government. We distinguish two things: the limitation of arma-_ 
ments and of manufactures. We should like to know whether all 
nations really agree with this idea. In this matter we have the 
greatest confidence in the nations; but we must foresee that some- | 
one will not conform to it, otherwise there would be no necessity | 
for the existence of the penal code. A nation with evil intention | 
certainly can fail to meet its obligations. We want to have such a | 
contingency foreseen and to have measures taken. That is the 
purpose of the amendment which we propose. | 

M. Léon Bourgeois: We seek to decrease the risk of war. 

The President: Certainly. 

M. Léon Bourgeois: Now if you do not establish a canola 
I don’t use the word in the sense which shocks you—if you do not | 
establish an inspection, if you let nations organize in silence and 
in secret unknown forces or war measures, which will rapidly 
develop; then in place of decreasing the risk of war, on the con-| 
trary you encourage war. If, on the other hand, there is super- 
vision, if there is an efficient brake, you discourage attempts at 
war and there will be less inclination to be, as the Indians say, on) 
the war-path. Morally, then, the establishment of this investiga- 
tion is an excellent thing. 


TENTH MEETING OF THE COMMISSION 251 


M. Kramay: If my amendment is adopted, I shall vote against 
control for the Allies. 

M. Larnaude: We want to have all nations subjected to 
this requirement. We do not want to have a possibility of subter- 
fuge, or any temptation for a nation to conceal anything. That is 
why our amendment is not to be confused with that of M. Kramar. 

M. Diamandy: The principle of supervision is just, but its 
application is impossible. 

M. Léon Bourgeois: Public opinion in France is unanimous in 
demanding supervision. 

The President: Is it really conceivable that the League of 
Nations will have an intelligence system supervising the conduct 
of the world? 

M. Léon Bourgeois: In an international convention there can- 
not be two sets of weights and two measures. If I thought that I 
could accept M. Kramai’s proposition, even though it should not 
conform to our ideas, I should accept it. 

M. Larnaude: There is a difference between M. Kramar’s 
amendment and ours. For that reason I ask for a vote on each 
of them. 

The President: By way of making a conciliation, I propose 
the following text: 


“A permanent Commission will be established to give the 
League its opinion on the execution of the stipulations of Article 
8 and in general on military and naval questions.” 


This version expressly imposes on the Commission the duty 
of insuring the execution of Article 9 [8]. This is neither investi- 
gation, nor is it supervision. 

M. Léon Bourgeois: In short, you propose to unite the two 
commissions into one. It would be as one commission with the 
two purposes. It is a simplification, but we must know what are 
to be the powers of this commission. As to the matter of arma- 
' ments, Lord Robert Cecil does not give more powers to this com- 
mission than does the text. It has thus achieved the union of 
commissions; but as it does not increase their powers, this amend- 
ment does not satisfy him. 

The President: I put to vote the amendment proposed by the 
French delegates. 

This amendment, put to a vote, is rejected by 12 votes against 3. 
Those who voted in its favor: MM. Léon Bourgeois, F. Larnaude 
and Kramar. 

The President: I put to vote Article 9 [8]. I wish to call at- 
tention to the fact that the drafting committee has thought best 
to substitute the words “full and frank interchange of informa- 
tion” for “publicity.” 


252 THE DRAFTING OF THE COVENANT 


Article 9,1 amended according to the proposal of the Presi- 
dent, and put to vote, is adopted. 

The President: We come back now to Article 7, with which 
M. Kramar’s amendment deals. (See below.) 

M. Rolin Jaequemyns: M. Léon Bourgeois quite rightly called 
our attention a moment ago to the fact that there can be different 
reasons for the admission of nations into the League. Don’t you 
think that when a new member is admitted into the League he will 
be admitted under conditions of inequality; and I fear that this 
would be contrary to the principle which must be considered as 
sacred in this connection, and I fear also that that would consti- 
tute an actual vice from the point of view of the operation of the 
League. When one can admit an undesirable member only under 
certain conditions, I should think that it would be better not to 
admit him at all. Otherwise, one would run the risk of disturb- 
ing the harmony. 

M. Larnaude: Then you propose a capitis diminutio. 

The President: Admission to the League will not affect the 
obligation of other treaties. 

General Smuts: This Covenant will be a part of the Treaty 
of Peace, and there can not be inconsistency between its parts. 

M. Kramar: I understand the logic of the French mind, which 
desires absolute equality for everyone. The Germans are be- 


ginning to clamor for admission into the League, and it is my — 


opinion that within a certain time you will not have the strength 
to refuse their admission, precisely in the name of justice and 
equality. Once they are admitted into the League, they will say 
that it is impossible that all nations should not be treated on the 
same footing of equality, and they will be free from control because 
we don’t wish to have control for ourselves. I can’t see why the 
French don’t see this. 

M. Léon Bourgeois: But we do ask for control. 

M. Larnaude: We have requested it. 

M. Kramar: There is no necessity of a control for the Allies, 
but there must absolutely be a control for the Germans. 

M. Larnaude: My amendment differs from yours in this; 
that we are obliged, as in every convention, to make plans against 
the bad faith of all. 

M. Rolin Jaequemyns: For my part I share, and I am sure 
that the whole Belgian nation shares, M. Kramar’s distrust of 
the shrewdness of the Germans. Our distrust is such that, accord- 
ing to our way of looking at it, all these precautions will be of no 
avail as long as the state of mind of the nation of whom we are 
speaking shall not be considered to have changed. The essential 
precaution to take consists in not admitting her and in not offering 


*Error for 8. 


TENTH MEETING OF THE COMMISSION 253 


her indirect means of working her way into the League so that, 

once a member of the League, she might not be able to say, “This 

is my house just as much as it is yours, and I want to be treated 

on the same footing as you.” Now that is just what I do not want. 
The President: Here is the text of the amendment: 


“However, special conditions concerning naval and military 
forces, armaments, and their control, imposed by the Treaty 
of Peace on any nation, shall not be affected by admission to 
the League.” 


Senator Scialoja: One cannot accept the amendment without 
being convinced of the contrary principle, namely that on entering 
the League one is freed of all preceding obligations. 

M. Larnaude: This reservation can figure in the official re- 
port (procés-verbal). 

The President: I put to vote the amendment of M. Kramar. 

(The amendment, put to vote, is rejected.) 

M. Léon Bourgeois: We have distributed an amendment 
worded as follows: 


“An organism * * *”?1 


We thank the Commission for having translated the idea of 
the permanent Commission into this text. This amendment has 
the object of fixing the powers of the permanent Commission, the 
object of its labors, and the limits of its duties. 

The President: The French proposal looks toward the estab- 
lishment of an international general staff, considering military and 
naval questions and the way in which they can best be given effect. 
You cannot look at the League of Nations as an advance against 
Germany. Nothing would more militate against peace. Nor would 
any country permit an international staff to know and interfere 
with its own military and naval plans so long as they consist with 
the policy of the League of Nations. 

_M. Léon Bourgeois: We may consider our amendment as 
modifying Article 9. That would be simpler. 

The President: Yes. 

M. Larnaude: The Commission has improved the wording 
of Article 9, but it is to give it greater precision that the French 
delegates have taken care to draw up a special article. 

M. Léon Bourgeois: The object of the amendment is as ‘ 
follows: 

We expressed yesterday the concern caused to us by the risk 
of sudden aggressions, and we insisted upon the necessity of hav- 
ing certainly and constantly not only an international army, but 
national contingents of the different associated nations ready to 
act because if we wait until concerted action be established be- 


? For the French text, see p. 260. 


254 THE DRAFTING OF THE COVENANT 


tween the various military authorities of the different countries to 
determine the place to which the international forces shall be sent, 
the figure of the associated contingents, and the methods which 
must be followed in the military operation, it is certain that very 
much time will elapse before the associated contingents become 
effective. We have therefore called to mind the situation on our 
own frontier as well as that of other countries, a situation which 
is as delicate as our own. And we have stated that it is not suffi- 
cient to wait until each of the associated countries is ready to come 
to the aid of the attacked nation, because as happened in 1914, 
it is possible that a considerable part of the territories or that a 
whole region, as happened to our Belgian Allies, be invaded and 
devastated before the international force might intervene effec- 
tively. Is it prudent? Is it wise? Must not certain eventualities 
be prepared against? Must not the existence of a permanent or- 
ganization, which I will not define, and which I do not call a 
general staff, but a permanent organism charged with anticipat- 
ing and preparing the military and naval means for the execu- 
tion of the obligations imposed by the present convention on the 
contracting parties, be considered and provided? This organism 
must be able to keep up a continual correspondence with the differ- 
ent countries and to call the attention of all of them to what it is 
necessary to provide and prepare, so that, if the menace becomes 
certain, and if the aggression actually occurred, no time will be 
lost, and all will be done which shall be necessary to block the 
aggression. This is our concern. We have set it forth with special 
emphasis. What we wish is that this permanent organization in 
all cases insure the immediate effectiveness of a military action. 

As you see, we have not pronounced the words “International 
Army,” and we have not mentioned “General Staff,’ we have 
been careful not to use the expression “International Command.” 
We have said only: 


“Permanent organism for study and preparation which shall 
have the special mandate of insuring the effectiveness of the 
defense in case of aggression.” 


M. Larnaude: Article 101 is very different from the end- 
ing of Article 9, which is proposed to you by the committee which 
met yesterday morning and afternoon at Lord Robert Cecil’s. 

Article 9 in fine provides a permanent commission, it is true, 
which must give its opinion on military and naval questions. This 
is extremely vague and lacks precision woefully ; on the other hand, 
our article may seem to you entirely different. In fact, it is dif- 
ferent. However, I take the liberty of observing that this article 
will seem very modest to you when I shall have called your at- 


*Meaning here the French proposed amendment to Article 9, quoted at 
p. 260, which is here envisaged as a separate article. 


TENTH MEETING OF THE COMMISSION 255 


tention to the fact that at first we requested an international army. 
This word has, I believe, greatly excited the journalists and all 
who are dealing with this question. 

M. Léon Bourgeois: We have made no motions for the crea- 
tion of an international army. 

M. Larnaude: No, but we insisted on this point. It was 
not a question of an army in the legal sense of the word. It was 
a question simply of the levy of certain contingents in each nation 
which in case of extreme necessity would form an army which 
could be transported rapidly to the aid of the threatened country. 
The organism which we would provide is very modest, beside 
that which M. Bourgeois and I requested at the preceding sitting. 
This question has been brought up at several sittings. At the very 
first, I stated the special situation of France and certain other 
countries. I said that there is such a danger existing for her and 
for the others that it would be necessary to provide something 
special in this regard. Our amendment goes further than Article 
9 in fine and the project of the Commission does not go nearly so 
far as the projects for an international army constituted from 
elements taken from each country. We propose our amendment 
as a happy medium. I would remind Lord Robert Cecil, and MM. 
Venizelos and Vesnitch who were with me in the committee for 
final wording, that I did not accept Article 10.1 I stated that 
I would reserve the right of discussion; and we thought that we 
could substitute the new article 10? for it. 

The President: I propose that an international staff be cre- 
ated to study and prepare the necessary military and naval meas- 
ures in case of aggression. (?) 

M. Larnaude: I was a little alarmed a moment ago when 
Lord Robert Cecil told us that it would be necessary to make 
plans for the invasion of all the countries in the world which 
might revolt. That reminds one too much of the plans of the 
German General Staff which it appears had plans for the invasion 
of every country in the world. That is what the German General 
Staff was working at; I believe that that would be making of 
the proposition which we have the honor to submit to you, I won’t 
say a caricature, I have too much respect for Lord Robert Cecil 
to use that expression, but it nevertheless expresses my thought. 
I will content myself with saying that it is an exaggeration. We 
must not forget that we have always admitted that there are parts 
of the world which are in such a situation and so surrounded with 
peoples that they run greater risks than other countries. If we 
make plans, I think they will be fairly restricted in number. 

Moreover, notice that in a number of your articles you pro- 


* Error for 9. 
?i.e. the French amendment. See note, p. 254. 


256 THE DRAFTING OF THE COVENANT 


vide that it will be the duty of the Executive Council to keep a_ 
strict watch over what is going on in the world, of seeking out 
possible causes of war in this or that country and of supervising 
any quarrels which demand attention. When I say that attention 
will be paid, I do not mean that we will limit ourselves to lending 
an ear; we will give attention by making a certain little plan, and 
I think that when the disputing countries know that armed forces 
are ready to intervene at once, calm will soon be reestablished. 
In any case that prospect will be efficacious. 

One of the conditions necessary for the League of Nations to 
be able to impose peace, is that the whole world know that she 
has the means to impose it and to impose it at once. There is no 
other way to enforce peace but by force intelligently placed at the 
disposal of the League of Nations. 

These are all the arguments which I would add to those ad- 
vanced by M. Léon Bourgeois. Once more I declare that even if 
you reject our motion, we shall none the less remain good friends, 
and we shall none the less continue our participation in the com- 
mon work. However, we desire that our reservation be mentioned. 

The President: I understand your attitude. 

M. Larnaude: No nation more than France desires to see 
a League of Nations founded, for it must be remembered it is 
she who first conceived the idea, and the initiative should be 
credited to M. Léon Bourgeois, of a League of Nations founded 
upon right. But right is nothing if it is not backed by force; 
force is not legitimate when it has not a just aim. Unfortunately, 
as Pascal has said, right by itself can do nothing but enhance great 
injustices. 

“Victrix causa Diis placuit, sed victa Catoni.” 

M. Vesnitch: I beg M. Léon Bourgeois, who well knows the 
respect I have for him, to consider the measure which has been 
provided and amended by Lord Robert Cecil, and which is worded 
thus : 


“A permanent commission is to be formed which shall see 
to the execution of Article 8 and shall advise the League on 
military and naval matters.” 


M. Léon Bourgeois: In our text there is no “which shall see 
to!” } 
The President: The text says: “Shall advise” the League. 
M. Vesnitch: What does “advise” mean? It is the same 
thing : to advise regarding the application of Article 8 is to verify 
the application. 

I find that the French wording presents a danger. It consti- 
tutes a sign of distrust in the League of Nations, and I desire 
that in the Constitution of the League, a statute which will be 


TENTH MEETING OF THE COMMISSION 257 


read by the public, this sign be omitted. I believe that Article g 
and the amendment by Lord Robert Cecil are sufficient. What the 
governments upon instructions of the Executive Council and of 
the League of Nations tell us to do will be done. In this Council 
the French Government as well as the American and the English 
government, will be able to make all suggestions which they shall 
deem fit. 

M. Léon Bourgeois: I am happy to answer M. Vesnitch 
and say that he knows my friendship for him. Our article, and 
I must beg his pardon for saying so, neither behind it nor in its 
form contains the dangers which he fears. It has not so great 
a range as he ascribes to it. It is the actual application of Article 9. 

We say: “In case of aggression, menace or danger of aggres- 
sion, (I thank the Commission for having added the words, or 
danger of aggression) the Executive Council will see to the 
measures suitable for insuring execution of these obligations” 

If the Executive Committee charged with insuring the execu- 
tion of these obligations has not at its disposal an organ to study, 
watch over, and provide, what do you think it ought to do? The 
Executive Committee is not made up of soldiers. Consequently, 
we shall tend toward a Commission made up of military men; and 
if it does not keep itself thoroughly informed of all that goes on 
in the world and of the menace which may arise, and if it does 
not provide the means which must be used to parry this danger, 
we shall be taken by surprise. It will be necessary for the govern- 
ments to take a proper interest. This Commission will give an 
opinion and will make known all that is necessary to know in antici- 
pation of a possible operation. Here it is our organism which will 
be operating. We must say so frankly; all the more so, because it 
is better to be clear and direct and not to recoil before the necessity 
of stating something which is indispensable. 

It will either have the powers which we desire to confer upon 
it, and I must say so frankly; or, it will not have these powers, and 
in that case, it will be of no use whatever. 

M. Vesnitch says, “You speak in such a way that one would 
think you are talking war.” Of course: “Si vis pacem, para 
bellum.” If you want peace prepare for war. 

The President: What you desire then is to insure the effec- 
tiveness of the measures taken. 

M. Larnaude: Lord Robert Cecil has expressed our thought 
very well. 

M. Léon Bourgeois: If no preparations are made we shall be 
taken by surprise. You have seen what the war has demonstrated ; 
before we were able to bring about unity of front, we lost a great 
deal of time, wasted a great deal of courage, of will power, of 
enthusiasm, of energy, and of boldness. From the day on which 


258 THE DRAFTING OF THE COVENANT 


we created a united front and insured unity of action we obtained 
decisive results. Since you are obliged to provide in your con- 
vention that for certain eventualities military penalties shall be 
inflicted, and since you are obliged to provide for the threat of 
aggression, and aggression with violation of the stipulated time 
limits, in the case of the outbreak of war, before the three months, 
we should commit a great imprudence if we did not take the 
necessary measures to arrest the aggression. Recent events which 
have occurred in the world show us that we must be prudent. It 
is therefore an appeal to prudence which I submit to you, and I 
am convinced that public opinion will thoroughly appreciate what 
we are trying to do. 

M. Hymans: I am not much impressed by the fears expressed 
by M. Vesnitch as regards the marks of distrust in a Society of 
Nations. Without using the word distrust, I find that it is but 
legitimate at least to seek for guarantees; this certainly can hurt 
the feelings of no one. No one will imagine in reading over our 
draft that this draft completely eliminates the danger of war. 
And from the moment when the public knows that wars remain 
possible it will find it quite legitimate to seek for all necessary 
measures to the end that in case war should break out all danger 
may be met. 

It seems to me that M. Larnaude has compromised the fate of 
his amendment in trying to bring out the difference between him 
and Lord Robert Cecil. 

M. Larnaude. I am trying above all to act in good faith. 

M. Hymans: If the word “prepare” means the right to im- 
pose obligations on states, intervening in the internal affairs of 
states, then I should say that in the name of the sovereignty of 
these states we say, “No, we do not wish that anyone intermeddle 
in our affairs.” 

Chairman: The text also says “to insure its efficacy.” 

M. Hymans: I see. I see a permanent commission estab- 
lished to advise the League on the execution of the obligations of 
Article 8, a commission which, in fact, is going to do exactly the 
same thing as what we propose to have the permanent council do. 

Chairman: It is altogether different. 

M. Hymans: A slight change would be necessary. Instead 
of: “to prepare” put, “to study and provide for.” 

M. Larnaude: The word “to prepare” is essential. 

Chairman: There is a real difference of opinion between M. 
Larnaude’s attitude and mine, and it is impossible to suggest words 
of compromise. 

M. Hymans: I give up the role of conciliator. As the repre- 
sentative of a small nation, which, on account of its geographical 
situation, is interested in having the greatest guaranty, I do not 


TENTH MEETING OF THE COMMISSION 259 


give my opinion on the question of international forces; but I 
declare myself, and I am, a supporter of all measures to increase 
guaranties in case a conflict should be about to break out. 

Chairman: We have done all we could not to frighten the 
public opinion of our respective countries. 

M. Larnaude: Lord Robert, we pay homage to all you have 
done. 

Chairman: I understand very well the idea of the French; 
but, if we try to do too much, we shall accomplish nothing. 

M. Léon Bourgeois: Lord Robert Cecil said that he had gone 
as far as public opinion of his country would support him. We 
also have gone as far as public opinion can agree. Public opinion 
must find security in the project. If there is nothing in the Con- 
vention to give this assurance, it will not support the Society of 
Nations and we shall find ourselves in a difficult situation. 

M. Larnaude: We want to pay homage to the wonderful 
spirit of conciliation shown by Lord Robert Cecil who found the 
way with an ingenuity which I admire, although I am in the habit 
of writing texts, to present immediately an amendment expressing 
our idea. 

M. Diamandy: I would like to conciliate the opponents. 

Chairman: Beyond a certain limit, conciliation becomes a 
trap. 

M. Larnaude: We must play open and above board. Lord 
Robert Cecil has admirably understood our amendment and has 
commented upon it remarkably but he went too far. We must be 
clear, above all. We presented to you the opinion of the French 
delegation. There remains nothing to do but vote on it. If we 
are defeated, we shall accept it and remain friends, nevertheless. 

Chairman: I put to the vote the amendment presented by 
MM. Léon Bourgeois and Larnaude. 

The amendment is defeated. 


Neither report of this afternoon meeting of February 13, 
however, is complete; and the verbal amendments proposed by 
Smuts and accepted are not stated with entire accuracy. What 
they did was this: the Portuguese amendment? added to the 
second paragraph of the disarmament article (Article 8) the 
following language: 


due regard being paid in such recommendations to the necessities 
of those countries which are not able to manufacture for them- 
selves munitions necessary for their safety. 

1This Portuguese amendment is printed in parenthesis in the text of the 


Covenant from the Drafting Committee (Annex 2 to the English minutes of 
the Ninth Meeting.) 


260 THE DRAFTING OF THE COVENANT 


With the changes of General Smuts the Commission accepted 
this amendment so that it read thus: 


due regard being had to the necessities of those countries which 
are not able to manufacture for themselves the munitions and im- 
plements of war necessary for their safety. 


The other change made in the Article was in the third para- 
graph, the substitution of the words “interchange of informa- 
tion” for “publicity.” 

The English minutes are quite obscure regarding the French 
amendment to Article 8, which they say was rejected by a vote of 
twelve to three;! but they do not give the text of that amend- 
ment, an English version of which is in the report quoted above; 
as appears from the French minutes,” it was as follows: 


Les Hautes Parties Contractantes résolues a se donner franche 
et pleine connaissance mutuelle de l’échelle de leurs armements et 
de leurs programmes militaires et navals, ainsi que des conditions 
de leurs industries susceptibles de s’adapter a la guerre, institueront 
une commission chargée des constatations nécessaires. 


Furthermore what the French proposed for Article g is set 
out in translation in the English minutes; as the French minutes ? 
show, the proposal read thus; 


Un organisme permanent sera constitué pour prévoir et pré- 
parer les moyens militaires et navals d’exécution des obligations 
que la présente Convention impose aux Hautes Parties Contrac- 

_ tantes et pour en assurer l’efficacité immédiate dans tous les cas 
d’urgence. 


In connection with some of the remaining Articles of the 
draft there was a good deal of talk, much of which was to very 
little purpose. Bourgeois went back to the Preamble and again 
referred to the Hague Conferences at length; he even made re- 
serves regarding the Mandates Article, which Clemenceau, the 
head of his own Government, had in substance approved at the 
Council of Ten. The only result of such tactics was to test the 
patience of the other members of the Commission and to throw 
a very favorable light upon the tact of Cecil as presiding officer. 


* Bourgeois, Larnaude and Krama¢. 
® Annex I. 


TENTH MEETING OF THE COMMISSION 261 


Two drafting changes were made during the discussion. A 
reference to Article 12 was inserted in the last sentence of Article 
15; and in Article 16 the words, “‘so far as possible” were stricken 
out. But, except regarding the “religious” Article, there were no 
other alterations in the text from the Drafting Committee. I in- 
sert here the discussion as it appears in the report above men- 
tioned, omitting the portion relating to the “religious” Article: 


Chairman: I put to the vote Article to. 

Article 10 is adopted. 

Article 11 is put to the vote and adopted. 

Article 12 is put to the vote and adopted. 

Article 13 is put to the vote and adopted. 

M. Léon Bourgeois: I renew my very strong protest against 
the preamble. I consider it a serious matter to ignore completely, 
as if nothing had ever been done up to the present time for the 
organization of international law, what has been done and elabo- 
rated at The Hague in 1899 and 1907. 

I recalled in a preceding meeting that the work done at The 
| Hague had not been done in vain as the opponents of Right have 
| claimed. They are the ones who have piled up jokes and raillery 
on the work done at The Hague; they have tried to cast discredit on 
the first great enterprise for the organization of right in the world, 
by their criticisms and raillery they succeeded in affecting the 
minds of those who ought to have been the staunchest upholders 
| of the work of The Hague. 

I foresee, I announce and I want it to be written in the minutes 
that, against the work we are now undertaking, the same criticisms 
and the same raillery will be made, and that they will even try 
to say that this work is useless and ineffective. As for me, I am 
proud to have been with a few of those who are here, among the . 
workers at The Hague; I am proud of having been there inti- 
mately associated with representatives of the United States of 
America, of Great Britain, and of most of the large free coun- 
tries. We were 32 faithful free countries, having the sentiments 
of right. On three or four occasions, international acts of the 
greatest importance, due to the international organization of The 
Hague, have occurred. I recalled that cases of arbitration have 
taken place, without war, between great powers like Russia and 
England in the Dogger Bank incident, between France and Ger- 
many in the incident of the Casablanca deserters, between France 
and Italy in the Carthage and Manouba affairs. 

These great powers were very happy, thanks to the interna- 
tional organization of The Hague Tribunal, and the system of 


*See p. 243 sq. 


262 THE DRAFTING OF THE COVENANT 


inquiries of The Hague Tribunal, to find measures to get out of 
trouble and to be reconciled immediately, to get close together in 
a cordial union. The Hague Tribunal safeguarded the dignity and 
honor of the nations which is generally the most dangerous of 
war menaces. 

I think, therefore, that it is regrettable that no mention should 
be made of what The Hague Tribunal has done, in the preamble 
of this Covenant, and I ask that the preamble be completed as far 
as that is concerned. 

M. Jayme Batalha Reis: I agree fully with what has just been 
said by M. Léon Bourgeois. 

M. Larnaude: In all wars account has been taken not only | 
of the principles of International laws as established by centuries, 
but also of The Hague Tribunal. It has been said that in such and if 
such circumstances, Germany had violated the convention of 1899-_ 
1907. Not to mention The Hague Conference is not only ingrati-— 
tude, but it is something more, it may be a disregard of the inter- 
est we have, not to deviate from the conventions which have truly 
played a part in this war. ; 

M. Léon Bourgeois: You are going to pronounce sentences— _ 
you will do so according to The Hague Conference. 

Chairman : Nobody thinks of forgetting the work of The 
Hague Conference, it is a simple question of form, not an im-— , 
portant matter. 

M. Léon Bourgeois: To my mind it is a vital matter. All the 
States represented here have the right to consider the institutions . 
of The Hague as non-existent and to wish to create something — 
new; they may want to ignore The Hague institutions in order — 
to express their will to substitute something new. It is a system. 
However, we were not told in the beginning that we should go SO 
far. We had thought that The Hague Tribunal of arbitrations 
should find its natural place in the scheme of decisions to con- | 
ciliate and solve the conflicts arising between States. | 

One is careful to say “the executive council shall decide * * * 
international.” 

Chairman: We are coming to it. 

M. Léon Bourgeois: I am referring to the idea of creating a i 
permanent court of justice, which seems to imply the idea of 
abolishing the existing court of Arbitration. 

M. Venizelos Is there really a permanent court of justice 
at The Hague? I was told there was none. 

M. Léon Bourgeois: I have the honor of being one of the 
members. 

M. Venizelos: I was given to understand that there was a | 
framework in which one could place such a permanent court. 

M. Léon Bourgeois: It was attempted to create a special court 


| 
| 
| 
| 
| 
| 


TENTH MEETING OF THE COMMISSION 263 


of justice; we did not succeed. The permanent court of The 
Hague is a list from which are selected the arbitrators needed; 
the whole procedure is organized. There is a series of articles 
to determine the functioning of this Court. 

M. Venizelos: Then it is not permanent and that is why we 
wish to constitute a real “permanent court.” 

Chairman: So far as English and American opinion is con- 
cerned, there is no intention to discredit the work of The Hague, 
and no reflection upon its achievements intended to be carried by 
our unwillingness to include reference to it in the Covenant. 

Colonel House: Although I respect the Court of Arbitration 
of The Hague, however the United States and other countries 
have ratified The Hague Convention with some exceptions which 
would lead us to vast and very difficult questions. 

M. Léon Bourgeois: I remind you that the International Com- 
mission of Inquiry which functioned in the Dogger Bank affair, 
was instituted and organized according to the procedure pro- 
posed by the delegates of the United States of America. They 
introduced at The Hague the project of organization of interna- 
tional inquiries and that raised no objections in the United 
States. 

I am not asking now for the least approval of what has been 
done at The Hague. I only say that there are international insti- 
tutions which are called: The Hague Institutions, Permanent 
Tribunals, or whatever you please. We should continue to call 
upon these organizations. 

Chairman: That is the very thing to do. 

M. Léon Bourgeois: Where? I assure you that I am not 
wasting my time, for I shall renew the protest I am making. 

M. Epitacio Pessoa: Must the Council prepare plans and 
submit them to the Assembly of Delegates? That point ought to 
be cleared up. 

M. Larnaude: Plan does not mean judicial text. 

M. Epitacio Pessoa: It should be known who is going to 
approve these plans. 

M. Larnaude: The governments will. 

Chairman: There are no further remarks on Article 14? I 
put it to vote. 

Article 14 is adopted. 

As proposed by Mr. Koo the words “and of Article 12” are 
added after the word “article,” 2nd line at the end of the article. 

Article 15 put to vote is adopted. 

Chairman: M. Larnaude has the floor on Article 16. 

M. Larnaude: Considering the seriousness of the sentences 
contemplated I ask that the words “as large as possible” be struck 
out. 


264 THE DRAFTING OF THE COVENANT 


Chairman: There is no objection. The words are ordered — 
to be struck out. 

Baron Makino: Is it the intention of this article to provide 
for the suppression of private relations? 

Chairman: Our experience with the blockade has demon- 
strated the necessity of putting an end to all kinds of relations. 

Mr. Koo: Is it anticipated that each state will declare war on © 
its own initiative against an aggression? 

Chairman: Contiguous states will immediately act on their 
own initiative. The Executive Council will by its decisions dis- 
pose of the hesitations of the other States. 

Chairman: Article 16 will now be put to vote. 

Article 16 is put to vote and adopted. 

Chairman: We will now pass to Article 17. 

M. Léon Bourgeois: It would be well to have the interpreta- 
tion of this article indicated in the minutes. 

M. Larnaude: We think that this article is not drawn up 
very symmetrically. I think that it should be accompanied by a — 
very precise commentary. 

M. Léon Bourgeois: There is an omission which must be 
supplied in one way or another. We must consider not only 
Article 10, but also Articles 11 and 13, concerning the infliction 
of punishment in case of a unanimous vote. Our convention has 
this peculiar character, that penalties which are considered neces- — 
sary in the case provided for in Article 10 and in case of a- 
unanimous vote on the part of the Executive Council, are not con- 
sidered in the same article as applicable according to the same pro- 
cedure. This is a discrepancy which should be remedied. I think 
that the article should be completely changed. I have nothing to 
suggest in the matter, but I wish to call attention to this omission. 

M. Larnaude: As for arbitration, it had been understood 
that as it was a question of cases in which disobedience was rare, — 
this was not necessary. We will make this article more sym- 
metrical later. 

Chairman: Since no one asks for the floor on Article 17, I 
will put it to vote. 

Article 17 is put to vote and adopted. 

Article 18 is put to vote and adopted. 

It was ordered that the procés-verbal should note that this 
article refers to those countries (?) which are mentioned in the 
Draft Arms Traffic Convention. 

Chairman: We will now pass to Article 19. 

M. Larnaude. That is not within our competence. 

M. Hymans: It will be within our competence at the Plenary 
Session. 

M. Léon Bourgeois: I put the question flatly: if the text has 


TENTH MEETING OF THE COMMISSION 265 


not been settled by the council, we can neither discuss it nor amend 
it? 

Chairman: We can discuss it, but at the Plenary Session. 

M. Léon Bourgeois: If we do not ask for modifications, it 
is because we consider that this text is imperatively imposed on us, 
if I may say so. 

M. Hymans: I wish to ask whether, at the end of the para- 
graph which considers the South-west African territories, we 
should not add the safeguards provided at the end of the pre- 
ceding article, that is, guarantees of equality. 

Colonel House: I have been discussing this question for more 
than a month, and I think that it is unnecessary to discuss it again 
here. 

General Smuts agrees with Colonel House. 

M. Léon Bourgeois: I insist on calling attention to the fact 
that if I do not defend the amendment that I proposed to Article 
19, it is because I am not permitted to do so, but I reserve the right 
to intervene before the conference. 

M. Hymans: I cannot understand why one régime is estab- 
lished for certain colonies and another régime for other colonies. 

Chairman: Article 19 will now be put to vote. 

Article 19 is put to vote and adopted. 

Chairman: We now pass to Article 20. 

Article 20 is put to vote and adopted. 

22 oe Whee ae ale 

Chairman: We now pass to Article 22. M. Pessoa has the 
floor. 

M. Epitacio Pessda: Article 22 establishes freedom of transit 
for the commerce of nations members of the League. I take the 
liberty of observing that contracts concerning the construction 
and improvement of ports have been signed and that by virtue of 
these contracts, a duty and tax must be paid on all boats and all 
merchandise for which the wharves are used. I wish to ask what 
will be the position of the states that have signed these contracts, 
after the vote on the project? What will be their position with 
regard to the concessionnaires? It seems to me that these states 
can not promise to accord liberty of transit, including exemption 
from duties and taxes, since they are bound by contracts which 
permit the concessionnaires to collect these taxes. We might there- 
fore make a reservation in the article concerning contracts now 
existing. 

The Chairman explained that the article merely laid down the 
general principle that a state, merely because it owned both banks 
of a river, had no right to close access to other states situated 
farther up that river. It merely establishes the general principle 
of freedom of access. 


266 THE DRAFTING OF THE COVENANT 


M. Léon Bourgeois: I ask that a commentary be given on the 
devastated countries. 

The other day M. Hymans made some very just remarks on 
this subject. It is not a question of immediate reparation or recon- 
struction, but of the commercial future, of the resumption of the 
commercial and industrial affairs of the devasted countries, a re- 
sumption that can not be accomplished unless special measures are 
taken to allow these countries to rise. It seems to me that the 
word devastate is very vague. 

M. Hymans: It is not the appropriate word. 

Chairman: There are commissions working on these ques- 
tions. 

M. Larnaude: It is not only a question of reparation, it is a 
question of what follows reparation. 

M. Hymans: What I feared was an interpretation of the 
article in an exclusive sense. 

M. Jayme Batalha Reis: The results of the war are the same 
for all countries, but on a different scale. 

In my country, we have transformed our factories; they can 
not be compared to the Belgian factories, but after all we have 
transformed them and they have been deserted by the workmen, 
so that the centers of commerce have totally disappeared. For 
lack of boats, we have not been able to ship our products. On one 
hand, we have ceased to produce; on the other, we have lost our 
centers of commerce. 

M. Vesnitch: And we? 

M. Jayme Batalha Reis: On a different scale. 

M. Larnaude: Those are questions of reparation. 

M. Hymans: All must be free to conclude commercial treaties. 
I represent a free trade [?] and I claim for it the freedom to make 
commercial agreements according to its interests. 

Chairman: All these matters are absolutely provided for by 
the text of the article. 

M. Léon Bourgeois: I ask that this interpretation be indicated 
in the report. 

Chairman: It is more than clear. 

M. Léon Bourgeois: Equitable is a vague word. 

Chairman: It is what is desired. Article 22 is now put to 
vote. 

Article 22 is put to vote and adopted. 

Chairman: We now pass to Article 23. 

M. Léon Bourgeois: You take the word contrdle in the Eng- 
lish sense? 

Chairman: Precisely. 

Article 23 will now be put to vote. 

Article 23 is put to vote and adopted. 


TENTH MEETING OF THE COMMISSION 267 


Articles 24 and 25 are put to vote and adopted. 

Chairman: Article 26. 

M. Larnaude: Seeing that the revision of the treaties of states 
is a considerable labor, which the governments will entrust to juris- 
consults charged with the duty of seeing that they do not contain 
any clauses in contradiction with the present act, it is important 
that the governments be as soon as possible put in a position to 
begin this work. 

M. Léon Bourgeois: I am struck with the similarity of the 
objects provided for in Articles 25 and 26. It would have been 
better to consider these various objects in the same articles. But 
I do not propose any changes. 

Chairman: They are different things. 

M. Léon Bourgeois: But they have common parts. 

Chairman: Article 26 will now be put to vote. 

Article 26 is put to vote and adopted. 

Article 27 will now be put to vote. 

Article 27 is put to vote and adopted. 

Chairman: Gentlemen, the project that we have just adopted 
will be presented to the Plenary Session tomorrow afternoon, but 
it will not be voted on. 

Article 21 will not be presented. 

No one asks for the floor? 

The meeting is adjourned. 


(The session is adjourned at 19 o’clock.) 


The “religious” Article was Article 21 of the text from the 
Drafting Committee. The minutes (made of course after the 
event) say that Article 21 was dropped, with a reservation by 
Colonel House to the effect that President Wilson might raise 
the question again at the Conference. 

A more accurate statement of what took place during the 
meeting is found in that portion of the report above mentioned 
which related to the proposed Article 21. I reproduce it here: 


Colonel House: I only wish to say that President Wilson 
strongly desires the inclusion of this article in the text. 

M. Larnaude: In the commission, we considered this ques- 
tion, and we agreed with Lord Robert Cecil that, in spite of the 
great advantage that there would be in proclaiming freedom of 
conscience and worship, the drafting of these reflections was so 
difficult that it was better to suppress it. I think that the anxiety 
shown is for other countries than those which are members of the 
League. Concerning the present members of the League and even 
those countries that will be invited to become members of it, I 


268 THE DRAFTING OF THE COVENANT 


do not think that there will be any difficulty whatever in this matter, 
but such serious incidents have occurred in certain parts of East- 
ern Europe that I understand perfectly President Wilson’s anxiety. 
But this is beside the question, since for the moment we are con- 
sidering especially countries where freedom of worship is accorded 
to all. But since President Wilson insists on the insertion of 
this article, I should be unwilling to demand its abrogation. 

M. Jayme Batalha Reis: I lived for six years in Russia, 
in which the struggle was rather between races than between 
religions. Persecutions took place between two races: the Slavs 
and the Israelites. Many Israelites have submitted to baptism and 
become orthodox. Without wishing to offend the race, from cer- 
tain points of view this race is inferior and is struggling against 
a superior race. 

Chairman: As President Wilson especially desires the inclu- 
sion of this article in the text, and as the commission has agreed 
to it in principle, I think it cannot very well be omitted. 

Baron Makino: 1 

Chairman: This matter has been the subject of long and 
difficult discussions throughout the world and in the British Em- 
pire. It is a question which deserves profound and serious con- 
sideration. But since it is essentially a controversial matter, I 
believe that it would be wiser not to go into an examination of 
it at this juncture. 

M. Wellington Koo: Being without instructions from my 
government, I beg leave to reserve my opinion. 

M. Venizelos: I take the liberty of expressing the opinion 
that it would be well to suppress the article concerning religious 
liberty, for it is an extremely delicate question and we run the 
risk of meeting insurmountable difficulties. I am sure that the 
League of Nations will rapidly bring us to the result that Baron 
Makino wishes to attain. For the moment, I propose the sup- 
pression of the article, for I think that we should not push mat- 
ters too rapidly. 

M. Jayme Batalha Reis: Seeing that Portugal has a legislation 
almost like the French, if the article is adopted I express the same 
reserve in the name of my government as the French delegates. 

I suppose that we are discussing the article on religions? 

Chairman: No, we are discussing the article on the liberty of 
races. 

M. Larnaude: M. Venizelos has shown the connection be- 
tween the two. 

The Chairman took the opinion of the commission on the arti- 
cle. The commission was of the opinion that it should be struck 


_* The statement read by Baron Makino appears in full in the English 
minutes of the Tenth Meeting and is here omitted. 


TENTH MEETING OF THE COMMISSION 269 


out. Colonel House said that he would go and inform President 
Wilson, and that if the latter wished to raise the matter again, 
another meeting of the commission would be called. At all events, 
on the President’s behalf, he would reserve the right to raise the 
matter at the Conference. 


My Diary thus states the action taken regarding the “‘religious” 
Article: 


At the close of the afternoon session the draft with amend- 
ments was finally adopted unanimously, subject to Article xx1 
being reserved to see what the President’s wishes were, the meet- 
ing being almost unanimous against including it, the only states in 
favor being Brazil, China and Roumania. 


Indeed, my Diary indicates very clearly that Wilson’s acqui- 
escence came after the meeting, while the printing of the text 
was going on as this extract shows: 


Subsequently, Colonel House told me that Article xx1 was 
to be omitted by direction of the President, and I so notified Lord 
Eustace Percy, who said he would tell M. de Lapradelle of the 
French, who was with him. This was about nine o’clock in the 
evening. In the meantime I had corrected the proofs and ordered 
1,000 copies printed for the next day when the text is to be made 
public and presented to the Plenary Session of the Conference at 
3) Ps) MM 


One contributing cause to the dropping of the “religious” Arti- 
cle was the fact that Baron Makino proposed his “equality” 
amendment * as an addition to the “religious” Article; certainly 
there was much force in one remark of Baron Makino: “It 
would seem that matters of religion and race could well go to- 
gether.” 

The statement which Baron Makino read on the “equality” 
question appears in full in the English minutes; but the Japanese 
amendment was not brought forward to be pressed at this time; 
it was to come up again. The proposal, however, served a good 
purpose at the meeting, for it helped to make impossible any 
article on religious liberty in any form; any such article in the Cov- 
enant would have been most dangerous, and perhaps fatal to the 
League; the subject was never again considered. 


1¥For the text of this, see p. 183. 


270 THE DRAFTING OF THE COVENANT 


The Commission adjourned at seven o’clock in the evening.? 
A Plenary Session of the Conference was to be held the next day, — 
February 14, at three o’clock, at which the text adopted by the 
Commission was to be presented. Nothing remained, so far as 
the English text was concerned, but its printing. This was done 
under my supervision at the American Printing Office with such 
expedition that 500 copies were delivered to me at four A. M. © 
on February 14. 

This text has been printed many times, for it was to be the ~ 
subject of comment, debate and criticism all over the world dur- ~ 
ing the next few weeks. In this collection, it will be found as the © 
Annex to the English minutes of the Tenth Meeting in Docu- © 
ment 19; its French equivaient,? printed by the Quai d’Orsay, is — 
Annex 11 to the French minutes of the Tenth Meeting in Docu- — 
ment 20. 

This French text is not a wholly accurate version of the Eng- — 
lish; the differences in meaning were well known during the dis- — 
cussions in Paris, although of course there was no opportunity ~ 
even to attempt to correct them during the pressure of the hours © 
immediately following the Tenth Meeting of the Commission. | ; 
need not enumerate the discrepancies here; some of them will be 
apparent upon even a casual reading of the two texts, such as the 
omission in the French in Article 10 of the word “existing”; and — 
in one case at least the difference in meaning between the French 
and the English seems to have been due to a printer’s error in the 
French. I refer to the last paragraph of Article 15; the French 
in the body of the minutes is correct; but as there noted, some 
words are omitted in the final print, changing the sense. 

This draft Covenant, as the Commission on the League of © 
Nations adopted it, was presented to the Plenary Session of the 
Peace Conference on February 14. Various speeches were made 
and, particularly as these are to some extent a commentary on 
the text, I print the (English) Protocol? of that meeting as 
Document 23. ! 

One point as to this Plenary Session should be emphasized; 
it took no action whatever on the draft of the Covenant sub- 
mitted to it. All that the Conference did was to receive the text; 
there is a very common error made in this regard, an error which 


+So says my Diary. The minutes say 7:45. 

"See as to this French text p. 223 sq. 

*This word has lately been so widely misused that I mention that its 
meaning here is procés-verbal and nothing else. 


TENTH MEETING OF THE COMMISSION 271 


is followed, for instance, by Judge de Bustamante, who says? 
that the February 14 draft “was approved by the Conference on 
the day it was submitted.” 

That statement is entirely erroneous. No one had the slight- 
est intention that that session of the Conference should approve 
the text of the draft. As Lord Robert Cecil said to the Com- 
mission just before it adjourned on February 13: 


The project that we have just adopted will be presented to 
the Plenary Session tomorrow afternoon, but it will not be voted 
on. 


It was not voted on, as the Protocol of that Plenary Session 
shows; on the contrary, it was definitely there stated by M. Clem- 
enceau in closing the meeting that the Report 


had been deposited with the Bureau of the Conference for ex- 
amination and discussion by all the interested Powers. The date 
on which the discussion could take place would depend upon the 
completion of the preliminary examination of the scheme. The 
Bureau would lose no time in summoning the Conference as soon 
as it was in a position to bring the Report up for a discussion. 


* The World Court, (1925) p. 89. 


CHAPTER XXII 
A REPRESENTATIVE ASSEMBLY 


ONE proposal which was rather insistently pressed in some 
quarters at Paris was the creation of a third kind of League 
meeting, in addition to the Council and the Assembly. I have 
called it a proposal for a Representative Assembly because it was 
so styled in some of the papers which suggested it. It is to be 
remembered in this connection that what we now call the Assem- 
bly was called the ‘““Body of Delegates” in the earlier drafts of 
the Covenant. 

The general idea of a Representative Assembly was that it 
should be a body composed of members reflecting or representing 
the various political parties in different countries. 

Those who advocated the proposal in some form did so on 
the ground that it was “liberal” in its tendencies. Governments 
as such and delegates representing Governments were not very 
new ideas and accordingly were to be distrusted. Assuming to 
speak for the supposed progressiveness of youth as against the 
presumed naturally reactionary tendencies of older persons, they 
persuaded themselves that a different system of representation by 
party was required, at least in addition to the official system, if 
not in substitution for it; and, following the usual fashion of 
those who do not think things through, they invented a meaning- 
less form of words as descriptive of the result of the proposal, 
saying that it would bring about a “League of Peoples” rather 
than a League of Governments. 

While the idea of the proposal did not originate in 19109, it 
is unnecessary here to trace it farther back than the International 
Labor and Socialist Conference which was held at Berne in the 
early part of February, 1919. That Conference was composed 
of Socialistic elements from various countries, but not at all 
those of the extreme Left. 

It strongly favored a League of Nations which “in propor- 
tion as Socialism is realized” would “be able to achieve more 
powerful beneficial results.” All permanent armies were to be 
abolished; any necessary armed force would be under control of 


272 


_ | 


A REPRESENTATIVE ASSEMBLY 273 


the League; the general régime of the world would be free trade; 
an international control of world communications (presumably 
including the Suez and Panama Canals) was to be established; 
and in the future, at least, the League would control both pro- 
duction and distribution of food stuffs and raw materials; inci- 
dentally, the League was to have the power, “after consultation 
by plebiscite,” to modify frontiers. 

I have summed up the ideas of the Berne Conference regard- 
ing the League of Nations because it is rather interesting at this 
date to look back and see the wildly impossible proposals that 
were seriously put forward by a body who honestly believed that 
they represented a great public sentiment. Of course in fact it 
would have been extravagant to suppose that such a program 
could have received any substantial support in any civilized coun- 
try; one per cent of the electorate, or less, would be a probable 
figure in the United States for example. 

At the Berne Conference the following proposal regarding 
a League of Nations was made by the delegation of the British 
Labor Party and accepted: 


Representation in the central organ of the League shall be, 
not by delegates of the executive branches of the governments of 
the constituted states, but by delegates from the Parliaments 
representing all parties therein, ensuring thus, not an alliance of 
cabinets or governments, but an union of peoples. 


One of the personnel of the Department of State, who had 
been present at the Berne Conference, drafted proposals some- 
what along the lines of this resolution; and at his request, on 
February 9 I revised their phraseology; and he submitted them 
to Colonel House by February 11, for on that day I told Colonel 
House that the revised proposal was “hardly practicable.”’ 

Officially and in another form, the proposal was put forward 
to the Drafting Committee of the Commission of the League of 
Nations, on February 12. The text of the new Article proposed 
has been quoted above.! It is sweeping but rather vague. The 
Representative Assembly is to be elected by the legislative bodies 
of the members of the League; it is to meet regularly, with very 
broad functions of examination and advice; but the details of 
“formulating the constitution of this Assembly” are left to the 
Council. 


*p. 218. 


274 THE DRAFTING OF THE COVENANT 


While this proposal was put forward by the British, it was in 
fact the proposal of Smuts, and Cecil was opposed to it. Ac- 
cordingly, the Drafting Committee, which included Cecil, re- 
ported as follows: 


The Committee considered whether it would be possible to 
bring the League into more direct relations with the peoples of 
the States members of the League. They found great difficulty 
in devising any satisfactory plan for the purpose and they do not 
recommend the inclusion in the Covenant of any Article of this 
kind at the present moment. If, when the scheme is laid before 
the public, there should be manifested a strong feeling that some- 
thing of the kind should be done, the matter might be reconsidered. 
It is suggested that reference to the point might be made when the 
Convention is proposed to the Plenary Conference. 


This brought the matter before the Commission at its Ninth — 


Meeting on February 13. 


At this meeting, Smuts submitted his proposal in another © 


and even more vague form: 


At least once in four years, an extraordinary meeting of the 
Body of Delegates shall be held which shall include representatives 


of national parliaments, and other bodies representative of public — 


opinion, in accordance with a scheme to be drawn up by the 
Executive Council. 


Aside from Smuts himself, no member of the Commission 
was in favor of the proposal at all. Cecil, Larnaude and Wilson 
expressed their disapproval; Hymans spoke at some length in 
opposition, and Orlando was of the same view. It was so obvi- 
ous that the proposal was unsatisfactory to the Commission that 
it was not put to a vote or even formally withdrawn; it simply 
disappeared when the discussion shifted to the number of repre- 
sentatives each Member of the League might have in the As- 
sembly.? 

One of the points that had been made against Smuts’ pro- 
posal was that necessarily every Member of the League must be 
free to choose its representatives in the Assembly as it saw fit; 
and Wilson had pointed out that in the draft, as it then stood,® 

*Such a reference may be found in the speech delivered by Wilson on 
February 14. See Document 23. 
*For the debate see p. 231 sqqg. and the minutes of the Ninth Meeting in 


Documents 19 and 20. 
* Changed from the Hurst-Miller Draft, which had fixed two as a maximum. 


0 al eo a OES 


—— 


ee a Se 


A REPRESENTATIVE ASSEMBLY 275 


the number of representatives was not definitely fixed. The dis- 
quieting possibility of this omission was that the delegations from 
different countries might in some cases be unduly numerous. So 
the Commission proceeded to fix a maximum, considered five as 
too large and determined on three; and while every one agreed 
that each delegation would have only one vote, Scialoja wisely 
proposed that this should be stated explicitly. 

So the result of the discussion of Smuts’ proposal was that 
the number of representatives at the Assembly meetings was 
limited to three for each Member of the League with an explicit 
statement of the international rule of one vote. 

Officially, this was the end of any suggestion for a Repre- 
sentative Assembly. Simply to complete the record, however, I 
mention that in March a member of the American Secretariat 
submitted a memorandum on the matter to Colonel House with 
a new draft of an amendment with the same purpose. This 
Colonel House handed to me on March 109, saying that it had been 
disapproved. 


CHAPTER XXIII 
CRITICISMS AND CHANGES 


PRESIDENT WILSON was away from Paris for just a month; 
he left on February 14 and returned on March 14. The draft 
Covenant presented to the Peace Conference on February 14 was 
really submitted to the world for comment; and comment came in 
a flood of criticism and suggestion of all kinds and from all quar- 
ters, friendly and hostile, important and unimportant. 

Among the honest critics there were of course those who 
thought that the Covenant went too far and others who were 
sure it did not go far enough; some who would have changed its 
form and others who would have made additions to it which in 
the aggregate would have been many times as large as the docu- 
ment itself. 

Undoubtedly at this stage the most important criticisms were 
those which came from the United States. America was debating 
the League; Wilson had made his speech at Boston on February 
24, and he had conferred with the Senate Committee on Foreign 
Relations. That part of American thought which was against 
any Covenant at all Wilson necessarily had to oppose; but he 
also had to recognize that American sentiment demanded certain 
changes in the text. Those most friendly to his plans, regardless 
of party, such as Senator Hitchcock and ex-President Taft, con- 
curred in this view; and Wilson accepted the proposed changes not 
only in substance, but generally in their very language. 

The changes in the Covenant which American sentiment really 
desired were very well summed up in a letter which Senator Hitch- 
cock wrote to the President as he started back to Paris. It is 
dated March 4, 1919, and read as follows: 


A number of Republican Senators who signed Lodge’s mani- 
festo on the League of Nations constitution will, in my opinion, 
vote for it nevertheless if it is a part of the peace treaty. A still 
larger number will give it support if certain amendments are made. 
The following I would mention as likely to influence votes in the 
order given: 

First, a reservation to each high contracting party of its exclu- 
sive control over domestic subjects. 


276 


CRITICISMS AND CHANGES 277 


Second, a reservation of the Monroe Doctrine. 

Third, some provision by which a member of the League can, 
on proper notice, withdraw from membership. 

Fourth, the settlement of the ambiguity in Article 15. 

Fifth, the insertion on the next to the last line of first para- 
graph of Article 8, after the word “adopted” of the words “by 
the several governments.” 

Sixth, the definite assurance that it is optional with a nation to 
accept or reject the burdens of a mandatory. 

I wish you a safe journey. 


Mr. Taft’s telegram of March 18 was to substantially the 
same effect : 


If you bring back the treaty with the League of Nations in it, 
make more specific reservation of the Monroe Doctrine, fix a term ~ 
for duration of the League, and the limit of armament, require - 
expressly unanimity of action in the Executive Council and Body - 
of Delegates, and add to Article 15 a provision that where the 
Executive Council of the Body of Delegates finds the difference 
to grow out of an exclusively domestic policy, it shall recommend 
no settlement, the ground will be completely cut from under the 
opponents of the League in the Senate. Addition to Article 15 
will answer objection as to Japanese immigration, as well as tariffs 
under Article 21. Reservation of the Monroe Doctrine might be 
as follows: 


“Any American state or states may protect the integrity 
of American territory and the independence of the govern- 
ment whose territory is threatened whether a member of the 
League or not, and may, in the interest of American peace, 
object to and prevent the further transfer of American terri- 
tory or sovereignty to any power outside the Western hemi- 
-sphere.” 


Monroe Doctrine reservation alone would probably carry the 
treaty, but others would make it certain. 


Now there was nothing in any of these changes which in it- 
self was of particular importance to any of the other Powers at 
Paris; the matter of withdrawal directly concerned the question 
of French security, but Clemenceau did not really take the League 
very seriously, and the French made less objection to a with- 
drawal clause than might have been expected; and while Lloyd 
George attempted to bargain for some kind of a naval agreement 


278 THE DRAFTING OF THE COVENANT 


with the United States in exchange for the Monroe Doctrine pro- 
posal, it was the naval agreement, and not the Monroe Doctrine, 
that he cared about.* 

Proposals of changes were also to come from the British, the 
French and the Neutrals; but none of the French or British pro- 
posals that were new were especially contentious; those of the 
Neutrals, which looked toward a considerable elaboration of the 
Covenant, could in general safely be laid to one side as matters 
for the future; and so far as the various ideas which were put 
forth for additions to the Covenant were concerned, they were 
mostly to be rejected as tending to load down the document with 
provisions which might cause opposition but would bring very 
little, if any, support. The major problem was to satisfy public 
opinion in the United States. 

One incidental problem, however, was the question of form. 
The text of the Covenant was necessarily to be somewhat recast 
and framed as a part of the Treaty, rather than as a single docu- 
ment. 

Wilson had two things to accomplish by his return to Paris; 
one, to perfect the Covenant and the other, to shape the Peace in 
accordance with his ideas. It seemed to me in Paris at the time 
and has always seemed to me since, that he would have done bet- 
ter not to have made his second visit. I say his second visit ad- 
visedly, because I thought his first visit, in December, was wise; 
and that he had the power to go I never doubted,” despite some 
expressions to the contrary on the part of others. 

When Wilson left Paris on February 14, his prestige was un- 
impaired; he had indeed made notable progress in various ways. 
The mandatory principle had been accepted; not as wholly as he 
would have wished, but still as far as acceptance was possible. 
There was agreement that the Covenant should be a part of the 
Treaty and there was a draft Covenant. Many very difficult 
problems remained; Reparations, the Left Bank of the Rhine, 
French security, the Adriatic and Shantung are examples. Wilson 
could have directed the negotiations about these as well from 
Washington as in Paris, just as he could have obtained from 
Washington as in Paris the necessary changes in the Covenant; 
and by staying in Washington he would have had the enormous 


*See Chapter xxx. 

*I wrote an opinion on the question for President Wilson in October 1918. 
With some eben in form, it appeared in the Harvard Law Review, Vol. 
ae, No. 1. “Some Legal Aspects of the Visit of President Wilson to 

aris. 


= 


CRITICISMS AND CHANGES 279 


advantage of keeping in touch directly with American sentiment, 
and being able to a great extent to influence it. At the same time 
he could have given more attention to those social problems aris- 
ing from the ending of the war which were coming up in the 
United States. Such success as could have been obtained in Paris 
regarding the details of the Peace would have been just as much 
to his credit as if he had been there and any lack of success would 
not have touched his fame. 

However, this is an account of what was and not of what 
might have been. “On ne refait point l’histoire par hypothése.”’ 

I may say here that the very general belief that the European 
Powers were unaware of or at least were surprised later on by the 
fact that the Senate of the United States may propose amendments 
or reservations to a treaty, or may refuse to accept it, is a mis- 
taken one. The delegations at Paris were perfectly familiar with 
the powers of the Senate and knew that they had often been exer- 
cised in the past. The British thought about the matter very often 
in connection with the Treaty of Peace; indeed in March, rg19, 
memorandums of mine regarding Senate procedure and showing 
in detail what happened in the Senate at the time of the Treaty of 
Peace with Spain, giving even the party representation and the 
party vote by figures, were shown to them. 

Equally erroneous, of course, is the notion that the United 
States is the only country that rejects treaties signed by its pleni- 
potentiaries. The fact is that almost all countries that have a 
written Constitution have provisions for the submission of treaties 
in general or with some exceptions to their legisiatures. In- 
stances of legislative rejection of negotiated treaties are extremely 
numerous ; scores of them might be mentioned ; the point is one of 
common knowledge of international lawyers and is treated by 
every writer on the subject. 

It would be impossible to give any chronological view of the 
various criticisms of the Covenant which were considered in de- 
tail, but I shall mention some of them as I go along. 

The first important conference which took place regarding 
changes in the Covenant after Wilson’s return to Paris was on 
March 18. The British had been considering the Covenant text 
very carefully and had some important ideas to propose regard- 
ing its form and substance. These were first developed at a con- 
ference which Lord Robert Cecil had with Colonel House and 
myself on the morning of the day mentioned. At this meeting 
amendments were not textually discussed, but only in general 


280 THE DRAFTING OF THE COVENANT 


terms; and it is of course to be remembered that the Draft of the 
Covenant which was before us was that of February 14.1 

Cecil first spoke of the general form of the Treaty and said — 
that he did not think well of the suggestion of having the Cove- 
nant in the Preamble as I had proposed (which was not, strictly 
speaking, my proposal), but that it should go in whatever 
its appropriate place in the treaty was, and that Germany 
should agree to it. His own preference was to have Germany a 
member of the League, as Lloyd George wished, but he supposed 
this would be impossible on account of French opposition. House 
assented and said he thought it would be better to have Germany 
in the League than to have her intriguing outside. House asked 
my opinion and [ replied that I thought well of Germany being 
in the League but not on the Council. 

Cecil’s reference here to what I “had proposed”’ alluded to a 
discussion which I had had with Sir Maurice Hankey on March 
14. My suggestion was not that the Covenant should go in the 
Preamble, but that it should be put at the beginning of the Treaty 
and be followed by the Peace terms; and at that interview with 
Sir Maurice Hankey I had written out a few lines to show this 
suggestion as a matter of principle, but not as a matter of draft- 
ing. The real point in Cecil’s proposal, while highly technical, 
was equally important; it came to this: that Germany, while not 
a Member of the League, should agree to the Covenant. And so — 
the Treaty reads: 


Ee 


The High Contracting Parties [Germany being one] .... 
agree to this Covenant of the League of Nations. : 

So by the Treaty of Versailles Germany accepted the Cove- ‘ 
nant and became as much bound by that acceptance as by any — 
other provisions of the Treaty, although at the same time not | 
having the privileges of a Member of the League of Nations; 
and the significance of this agreement did not escape the critical — 
examination of the Treaty by German jurists. It had even some 
influence in bringing about Germany’s entrance into the League;_ 
for Germany was, so to speak, in a position opposite to that of | 
the United States; she was bound by the terms of the Covenant 
without any of its privileges; the United States, by the Treaty of 


= 


*With the following pages generally, see the text of this Draft in the ; 
Annex to the English minutes of the Tenth Meeting of the Commission on : 
the League of Nations in Document 19. | 


CRITICISMS AND CHANGES 281 


Berlin, received all the privileges of the Treaty of Versailles with- 
out any burden of its obligations. 

Cecil’s further suggestion as to form was that Article 7 
should be recast so as to name all the States Members of the 
League in a protocol or schedule, and that this list would include 
the neutrals. He asked me if there was any objection to a proto- 
col being drawn, on the theory that it might be regarded as a 
separate instrument by the Senate. I told him I saw no such 
objection, but in any event the protocol could be called a schedule 
and made a part of the treaty, and then, certainly, there would be 
no objection. 

Cecil then went over various suggestions of amendment that 
he had, saying that there were some other questions of drafting, 
but that he would take up only the important matters. 

The next question was as to Article 3. Cecil thought that the 
Council should have the possibility of expansion by co-opting 
other States, with the approval of a majority of the Assembly. 
House agreed with this.? 

He next proposed to change Article 8 (on armaments), chiefly 
in point of form. In the second sentence, first paragraph, he 
wanted to make it clear that the limits of armaments are to be 
adopted by the Governments, which was indeed the meaning of 
the text as it stood. It is to be noted that this is one of the 
changes specifically urged by Senator Hitchcock in his letter 
which I have quoted above.” Cecil also wanted to change the 
language of paragraph three of Article 8 so as to make the 
interchange of information applicable to all the matters men- 
tioned. This was really a change in drafting only. 

The only change in substance, which he said he cared very 
little about, but which was wanted by the British Admiralty, was to 
change the prohibition of any alteration in the armament limits, 
when adopted, without “the permission of” the Council, so as to 
permit such alteration upon “notice to’ the Council. 

Coming to Article 10, he read the Canadian views,? which 
were very much against it, on the theory that Canada might be 
dragged into a European war. He also said that some amend- 
ment in that regard would be proposed by Hughes of. Australia. 
He read an amendment, with which he said he was not satisfied, 
which would take out the word “preserve”; and his final sugges- 


*See Article 4 as it now reads. 
* See p. 276 sq. 
* See the Memorandum of Sir Robert Borden at p. 354 sqq. 


282 THE DRAFTING OF THE COVENANT 


tion was that there should be a reference in this Article to Article — 
24 (now 19) regarding the reconsideration of Treaties. I 
pointed out that the French would feel that the whole life of — 
the League was taken out by a change in Article 10 such as the © 
Canadians had suggested, and that in reality the second sentence 
of Article 10 softened the effect of the first sentence considerably. — 

Cecil next suggested a change in Article 15 to meet the wishes 
of the President in the case of a dispute and a report by the Coun- 
cil which was unanimously agreed to but which none of the 
Parties to the dispute liked; the change would have provided that 
only when one Party to the dispute wanted the report of the Coun- 
cil carried out (and the other did not) would the third sentence of 
the second paragraph of this Article apply; that is, the last part — 
of that sentence, then reading ‘and that, if any party shall refuse — 
so to comply [with a unanimous report] the Council shall pro- 
pose the measures necessary to give effect to the recommenda- 
tion, ”)* 

He then mentioned the idea of having a financial council of 
the League, which he thought would be advisable in a mild form 
as a substitute for the elaborate proposals of the French ;? and he 


+The final solution was the omission of this clause. See p. 291. 

* These “elaborate proposals’”’ were those of M. Klotz. They were brought 
forward on January 25 at a Plenary Session of the Peace Conference and 
had been discussed before the Financial Commission which on April 5 made 
this “Report on the Project of a Financial Section of the League of Nations”: 

The Financial Commission adopted the principle of the existence of a 
Financial Section of the League of Nations, and considered that its | 
duties should be as follows: 

1. To advise the League of Nations, either the Executive Council or | 
the general body of Delegates, inclusive of naval and military sections, on 
any financial questions which may be referred to the section. 

In principle the advice of the financial section must be asked. However, | 
in exceptional cases the League of Nations must have discretion to act 
without seeking such advice. 

2. To investigate any financial questions which may seem to the Section 
to require the attention of the League of Nations, and to make recom- 
mendations thereon to the Executive Council of the League of Nations. 

3. In cases of financial questions arising out of international disputes, 
e prepare the materials for a decision for submission to the Judicial | 

ourt. 

It is desirable that the Financial Section should not only give advice in 
case of legal proceedings being taken, but should also be empowered to 
suggest compromises to the Court. 

4. To nominate International Financial Commissions, the formation of 
which has been decided on by the League, and to exercise over them such 
control as the League may direct. 

5. To summon International Conferences at which States other than 
States members of the League might be represented, for the discussion of 
financial questions of international interest. 

To undertake all other powers or functions which may be assigned 
to the section by the League of Nations. 

47. To control the execution of the Financial Terms of the Treaty of 


CRITICISMS AND CHANGES 283 


said that there was nothing in the Covenant, except perhaps in 
Article 22 (now 24, paragraph one) on the subject. House 
suggested that the clause should be made general, not only to in- 
clude financial matters but perhaps others; and I pointed out that 
Article 4 (now 5, paragraph two), which gives power to appoint 
committees, had in a former draft 1 given express power to ap- 
point committees from outside the Assembly or Council, and that 
this had been dropped as it had been thought unnecessary.? 

At the close of the conference Cecil said that he was going 
to see the newspaper men and that he would speak of the incor- 
poration of the Covenant in the Treaty of Peace, and also sub- 
mitted to House whether he should say in substance the follow- 
ing about the Monroe Doctrine: that if the Monroe Doctrine 
meant that the American hemisphere was permanently separated 
from the rest of the world it was pernicious and was opposed to 
the Covenant ; but if it meant that nothing was done in the Ameri- 
can hemisphere without the consent of the United States, that it 
was in accord with the Covenant. House said that he saw no 
reason for not saying this, and asked me what I thought of it. I 
said I saw no objection to it. 

Thus the discussion was wholly of the British proposals; no 
American amendments were suggested, but the Monroe Doctrine 
was obviously in mind. 

This conference was preliminary to a detailed discussion with 
President Wilson that evening. House and Cecil dined with the 
President, whose usual dinner hour was about seven o’clock. He 
was perhaps the only statesman in Paris who dined early, as the 
general dinner hour there was very late. I joined the meeting in 
the library of the President’s house at eight o’clock when the 
amendments proposed by Cecil were gone over one by one. Cecil 
had with him three printed copies of the Covenant of February 14, 
each with his proposed changes written in red ink. 

The result of the conference was that most of Cecil’s pro- 
posed amendments were accepted by Wilson. A new text incor- 


Peace in the event of the League of Nations receiving general control of 

the Treaty. 

Note. If the League of Nations does not control the execution of the 
Financial Terms of the Treaty of Peace, an Interallied Commission should 
be appointed for this purpose. 

The Klotz proposals were never discussed by the Commission on the 
League of Nations; but see the French amendment proposed to Article 21 in 
the Annex to the French minutes of the Twelfth Meeting. The “mild form” to 
which Cecil referred is printed in a parenthesis at the end of Document 28. 

*See Document 7, Article 2. 

* Such committees have frequently been appointed. 


284 THE DRAFTING OF THE COVENANT 


porating these accepted amendments was subsequently printed 
giving a comparison with the text of February 14 in parallel 
columns. I reprint this paper 1 as Document 24. It will be found 
a convenient reference in following the changes which were 
agreed upon and also in connection with the somewhat detailed 
account of this conference which follows. In that account I in- 
corporate mention of those changes proposed by Cecil which were 
not accepted and which accordingly do not appear in that print. 

As I mentioned above, there were only three copies of the pro- 
posed Cecil amendments; so at the beginning of the meeting I 
had some difficulty in taking note of them while sitting beside the 
President, who had one copy; so Colonel House handed me his 
copy and asked me to sit next to him so that he could look it over 
and thus all might follow the discussion which was carried on 
chiefly by Wilson and Cecil. 

Cecil’s first change ? in the Preamble was said by him to be 
simply for euphony, as the words “secure” and “security” came 
close together; but by his second change in the Preamble he in- 
tended to have Germany agree to the Covenant, although not a 
Member of the League. The importance of this change I have 
pointed out previously.* Because of it, it was also agreed that 
the expression “States Members of the League” instead of “High 
Contracting Parties” should be used throughout after the Pre- 
amble, and this change first occurs in Article 1. 

The use of these words “States Members of the League” 
caused some difficulties later on, for some of the Members of the 
League, such as India and (at least in 1919) the British Do- 
minions, were not “States,” although to be Members of the 
League. 

The third change in the Preamble which Cecil proposed was 
that the word “Articles” should be inserted in place of the word 
“Covenant”; but this was dropped. 

In connection with Article 3 Cecil explained that the purpose 
of his amendment (paragraph 2) was to provide for an addition 
to the Executive Council. The President said perhaps that could 
be left to the Body of Delegates; to which Cecil replied that they 
might swamp it, and the President agreed that they might. Cecil 
said that really the Great Powers had to be the essential factor 
and that he was thinking of the future participation of Germany 


*For ‘clarity, the form of the original print is somewhat altered. 

*As to this change and those mentioned in the following pages, see gen- 
erally Document 24. 

* See p. 280. 


CRITICISMS AND CHANGES 285 


and even of Russia. In answer to French objections it could be 
said that France would be on the Executive Council and could 
prevent any addition. Cecil thought, however, that if Germany 
became a really great Power the pressure to have her added 
would be very great. The President said that Germany would 
be a great Power after a few years except in a military sense, but 
that, however, it was better not to go farther than the proposed 
amendment, in view of sentiment now which had to be taken into 
consideration. 

The amendment to Article 4 (paragraph 2, the rule of unanim- 
ity) was stated by Cecil and admitted to be nothing more than a 
statement of what the Covenant would mean if it was not con- 
tained in it, but inserted to satisfy sentiment. It was at first 
suggested to leave out the words “at the meeting,” but after some 
consideration it was thought that they had better remain so as to 
prevent one State from stopping the holding of a meeting, or to 
cover the case when one Member might not find it possible to be 
represented. 

At Article 4 the President asked if there had been any dis- 
cussion of a place for the Seat of the League. House said that 
the Swiss had been around talking to everybody about it and 
were perfectly willing to have the League take any territory it 
wanted, either at Geneva or Lausanne. He said that he had had 
the climatic conditions looked into and they would be about the 
same; Geneva would be more convenient; and that the property 
which the Swiss were willing to give and which it would prob- 
ably be necessary to take over was worth ten million francs; 
that he did not think that the countries of the world should 
accept that from a comparatively poor Power. Cecil agreed to 
this, although he said, laughingly, it would be a very good invest- 
ment for them to give it away for that purpose. 

There was also some discussion of Swiss neutrality; Wilson 
said that neutrality was a part of the Swiss constitution and that 
the whole Canton in which the Seat of the League was situated 
would be given to the League for that purpose, and that neutrality 
of the whole State of Switzerland would be recognized by the 
League. It was agreed tentatively to put Geneva or Lausanne in 
the blank in Article 5, so that it might come up for discussion. 
Cecil said that nearly everybody, for one reason or another, was 
opposed to having the Seat of the League in Belgium. 

Cecil explained his amendments to Article 7 as partly neces- 
sary because of the assent of Germany while she lacked member- 


+ 


286 THE DRAFTING OF THE COVENANT 


ship, and that otherwise the Article was changed so as to make 
the language positive and not negative. The provision for a two- 
thirds majority for the Body of Delegates was retained, after 
some discussion, in order to please the French; so the only differ- 
ence between the text proposed by Cecil for Article 7 and that 
agreed on at this conference was that the latter reads f two-thirds 
majority” instead of “majority.” 

As to Article 8, Cecil explained that his changes, were in the 
way of simplification in drafting, except the proposal to change 
“the permission of” to “notice to” in the last sentence of the first 
paragraph of the Article; as proposed by Cecil, this.read: 


These limits, when adopted by the Governments, shall not be 
exceeded without notice to the Executive Council. * 


He said this was wished by the British Admiralty, and the Presi- 
dent said he did not see how it could be accepted. Cecil then said 
that he would not press it,t but he wished the President would 
understand that he had various other amendments of the Ad- 
miralty and it would be understood that he had pressed them 
very seriously, but as this was the weakest of the lot and the 
President had not accepted it, it was not worth while ‘mentioning 
the others. 

In the last paragraph of Article 8, the Cecil proposal used 
the verb “agree.” This was changed to “undertake” 

Otherwise Article 8 as agreed on at this meeting (see Docu- 
ment 24) was as proposed by Cecil. 

The views of the British Admiralty regarding Article 8 were 
unsympathetic. They were expressed in a memorandum ad- 
dressed to Cecil, of which I was given a copy. It seems to me of 
sufficient importance to reproduce here, noting that some of the 
points raised in it are suggested again in the Geneva Question- 
naire of 1925: 


1. The adoption of Article vir of the Covenant of the 
League of Nations involves consequences of so grave a nature and 
so prejudicial to the interests of this and other countries that the 
Departments concerned with National Defense feel themselves 
compelled to represent in the strongest possible manner that the 
proposals it contains sae be given further and fuller considera- 
tion. 


1The language agreed on read thus: “These limits, when adopted by the 
several Governments, shall not be exceeded without the concurrence of the 
Executive Council.” 


CRITICISMS AND CHANGES 287 


2. The Admiralty, the Army Council and the Air Council are 
in entire sympathy with the desire to reduce the total armaments 
of the world. A Scheme designed to prevent war and to further 
international cooperation is a matter of public policy, in which 
their immediate responsibilities are not touched and they would 
desire to support and assist in its developments to the best of their 
ability. But they feel bound to point out that the introduction at 
the present stage of proposals for the limitation of armaments, 
before the League of Nations has established its power to afford 
security to its members, may delay rather than advance the reduc- 
tion of armaments, since many intricate and delicate questions, the 
solution of which should preferably await an atmosphere of secur- 
ity, will be involved. 

3. Further, the acceptance of the proposal for limitation of 
armaments entails a serious constitutional consequence which the 
Admiralty, Army Council, and Air Council cannot accept without 
the strongest protest : namely, the abrogation of their constitutional 
duty of advising their Government as to the strength of their 
Naval, Miltary and Air Forces. 

4. While fully appreciating the force of the desire, on the 
grounds of public policy, that private enterprise in armament pro- 
duction should cease, it is observed that the effects of this pro- 
posal would operate to the advantage of an aggressive power, and 
would seriously compromise the security of fully established demo- 
cratic countries which would be most reluctant to spend money 
and effort in accumulating in peace time the resources which they 
would require in the event of war. It is further maintained that 
the proposal would tend to provoke rather than to prevent war, 
and the reasons for this view are set forth in the attached 
Appendix. 

5. It is therefore held that the prohibition of the manufacture 
of munitions and implements of war by private enterprise should 
be excluded from the main Covenant of the League of Nations 
and should be reserved for further consideration and examination. 

» 6. To the proposal that there shall be full and frank publicity 
as to all national armaments and military, naval or air programmes, 
the fullest acceptance can be given. 

7. Finally it is strongly urged that the whole question of the 
Limitation of Armaments should be reviewed independently of the 
general Covenant of the League of Nations. 

The above arguments show how difficult it is to deal with the 
question in a brief generalization, while on the other hand the 
establishment of the League of Nations on a satisfactory and 
durable basis would in all probability permit the question of arma- 
ments to solve itself by a natural process. 


288 THE DRAFTING OF THE COVENANT 


Appendix 
[to foregoing Memorandum] 


THE QUESTION OF AN INTERNATIONAL AGREEMENT FOR GOVERN- 
MENT OWNERSHIP OR CONTROL OF ARMAMENT FIRMS AND 
ITS RELATIONSHIP TO A LEAGUE OF NATIONS. : 


1. The idea of a governmental control of armament firms, 
eliminating, as it might be expected to do, the influence of wealthy 
organizations, whose interests lie in the multiplication of war-like 
material, and whose main profits are derived from war, is an at- 
tractive one. It is, however, necessary to examine the results of 
its probable working and make sure that in eliminating one set of 
evils worse ones are not introduced. 

2. The experience of the war has shown that very few nations 
are self-supporting as regards armaments and munitions. If it 
had not been for the factories of the United States, the position of 
the Allies would have been excessively difficult, if not impossible, 
before the entry of America into the war. 

3. If armament firms had been under governmental control 
the supply of their products by a neutral government to a belliger- 
ent would have been prohibited by International Law and the vast 
resources of America would not have been available to the Allies. 
The effect of this on their fortunes might well have been disastrous. 
The blockade, which was so largely responsible for the ultimate 
defeat of the Central Empires, in denying to them munitions or 
their essential ingredients, produced a state of affairs which may be 
comparable to the results which would follow from governmental 
control of armaments. 

4. It may be argued that the prospect of such a state of affairs 
would act as a preventative of war, or at least as a deterrent. This 
argument obviously breaks down in the case of the late war, be- 
cause the Central Powers as the aggressors would have had every- 
thing to gain by such a rule, which would operate to the advantage 
of a nation seeking to achieve victory by a sudden attack. Any 
country dependent on outside sources for the supply of armaments 
and munitions would be impelled to accumulate munitions and to 
build up armaments in peace time, if it were not to be at a disad- 
vantage in case of war. An aggressive nation would thus be en- 
couraged to maintain itself nearly on a war footing, a condition 
of affairs which would tend to precipitate the very explosion it is 
sought to avoid. 

5. If an effective and world-wide League of Nations was estab- 
lished, governmental control or ownership of armament firms 
would be a perfectly feasible arrangement, and in keeping with 
the general idea underlying the League. In these circumstances, 
however, the necessity for such control would largely disappear. 


—s 


CRITICISMS AND CHANGES 289 


It is, moreover, a sine qua non that the League should be effective 
and should snclude all nations. Nations which are not great 
munitions producers must have absolute guarantees that if they 
go to war on behalf of the League the members who are capable 
of supplying them with munitions shall place themselves in a posi- 
tion to do so, whether they do or do not undertake active hostilities. 

6. Again, it would be essential, not only that all nations whether 
within or without the League should accept the principle of national 
control of armament firms, but also that the League should be 
able to ensure that they continue to enforce its faithful observance. 
Any nation which evades such observance for reasons of economic 
or military advantage could reduce the effect of the control to a 
nullity. In the case of explosives, the essential ingredients of 
which are used to the widest extent commercially, adequate super- 
vision would be well-nigh impossible. 

Furthermore, all aircraft are inherently weapons of war. 
Measures aimed at the limitation of the production of air-craft 
as part of national armaments would therefore inevitably limit 
also the production of aircraft for commercial purposes. 


There was some brief discussion of Article 10. Cecil’s pro- 
posed amendment was to insert after the word “undertake’’ the 
words “subject to the provisions of Article 24” (i.e. Article 22 
of the amended text, now Article 19, permitting the Assembly to 
advise the reconsideration of inapplicable treaties, etc.). Ac- 
cordingly, by Cecil’s amendment, the first sentence of Article 10 
would have read: 


The High Contracting Parties undertake, subject to the pro- 
visions of Article 24, to respect and preserve as against external 
aggression the territorial integrity and existing political indepen- 
dence of all States members of the League. 


Cecil said that he did not think his proposed amendment 
made any difference in the meaning. Wilson said that this was 
the one Article on which the French relied and he did not see 
how it could be weakened ; so the change was not accepted. 

Wilson agreed to the Cecil amendment to Article 11 without 
any special comment, although it seemed to me that it was quite 
important. Similarly, the amendment to Article 14 was accepted, 
although it appeared to provide for obligatory arbitration. 

My views at the time on these two amendments were ex- 
pressed in a letter written that same evening (dated the next 
day) to Colonel House, which I copy below. The change in the 
first paragraph of Article 11 remained in the Covenant and my 


290 THE DRAFTING OF THE COVENANT 


fears about it were no doubt unwarranted; as framed it made the 
concluding words of that paragraph read: “and the League shall 
take any action that may be deemed wise and effectual to safe- 
guard the peace of nations” instead of “and the H.C.P. reserve 
the right to take any action,” etc. 

The amendment to Article 14 regarding the Permanent Court 
of International Justice was later changed in its language and as 
changed became the basis of the jurisdiction of the Court to ren- 
der advisory opinions. Very likely the words of the Cecil pro- 
posal were not intended to have the sweeping effect which might 
properly, I think, be attributed to them; but it is well that they 
were modified later on; as written, it added these words to the 
language of the Article defining the jurisdiction of the Court: 
“and also any issue referred to it by the Executive Council or 
Body of Delegates.” 

What I wrote to Colonel House follows: 


Herewith I hand you copy of the Covenant marked to show 
the changes of last evening. 

In looking over these changes it occurs to me that the amend- 
ment to Article 11 will tend to increase the President’s difficulty 
with the Senate, as it makes compulsory, action on the part of the 
League to prevent war. 

It seems to me that still more objection will be raised in the 
Senate to the addition to Article 14. This goes the whole length 
of permitting the Executive Council or the Body of Delegates to 
compel arbitration. It is true that the Permanent Court contem- 
plated in the Article is not yet established, but its establishment 
would make compulsory arbitration depend solely upon the vote 
of the Executive Council, a vote from which the parties to the dis- 
pute would be presumably excluded. 

I venture to call to your attention what seems to be the effect 
of these amendments in view of the fact that neither one of them 
received any discussion. 


Next for discussion was the second paragraph of Article 15. 
As proposed by Cecil, this paragraph was to read as follows, the 
change suggested being in the phrase italicised: 


Where the efforts of the Council lead to the settlement of the 
dispute, a statement shall be published indicating the nature of 
the dispute and the terms of settlement, together with such ex- 
planations as may be appropriate. If the dispute has not been 
settled, a report by the Council shall be published, setting forth 
with all necessary facts and explanations the recommendation 


CRITICISMS AND CHANGES 291 


which the Council think just and proper for the settlement of the 
dispute. If the report is unanimously agreed to by the members 
of the Council other than the parties to the dispute, the States 
Members of the League agree that they will not go to war with 
any party which complies with the recommendation and that if any 
of the parties to the dispute is willing to comply with the recom- 
mendations, and if any other party refuses so to comply the Council 
shall propose the measures necessary to give effect to the recom- 
mendation. If no such unanimous report can be made, it shall be 
the duty of the majority and the right of the minority to issue state- 
ments indicating what they believe to be the facts and containing 
the recommendations which they consider to be just and proper. 


A comparison of this proposal with the two texts of the same 
paragraph of Article 15 in Document 24 will show clearly the 
point discussed and the conclusion reached. 

The President said he had thought of the matter a good deal. 
Cecil said he had proposed his amendment in order to clear up 
the ambiguity suggested by the President in a case where a recom- 
mendation was not satisfactory to either party to the dispute. 
The President spoke of the hypothetical case urged in the Senate 
Committee on Foreign Relations, that the Japanese might acquire 
a harbor for a naval base in Magdalena Bay; that if the matter 
was submitted to the Council, with Japan and the United States 
not voting, the other Powers, possibly because of some ill feeling 
against the United States, might decide unanimously that the 
fears of the United States were not well founded and that it 
would be an insult to Japan to suppose that she required the har- 
bor for anything except commercial purposes. He said that all 
this seemed highly improbable to him, but it was a perfectly fair 
answer for the Senate to say that that was only his opinion. 
What, under those circumstances, would the Council propose? 
Following the discussion the President suggested that the amend- 
ment be dropped and that the words in the third sentence of the 
paragraph, after the word “recommendation” where it first oc- 
curs, be stricken out. This was accepted. 

Textually, the effect was this. In the Covenant of Febru- 
ary 14 the third sentence of the second paragraph of Article 15 
read as follows: 


If the report is unanimously agreed to by the members of the 
Council other than the parties to the dispute, the High Contracting 
Parties agree that they will not go to war with any party which 
complies with the recommendation, and that, if any party shall 


292 THE DRAFTING OF THE COVENANT 


refuse so to comply, the Council shall propose the measures neces- 
sary to give effect to the recommendation. 


The words in italics were stricken out. This reversed the 
decision of the Commission made at its Seventh Meeting, 
following the discussion of the Fifth Meeting. I have pre- 
viously referred to the matter at some length, mentioning my 
views against the idea embodied in the words now omitted, then 
called “the Veniselos amendment.’’? 

The Cecil amendments to Article 17 were accepted as merely 
preventing ambiguity, substituting the Council for the League 
to decide what modifications, if any, would be necessary in ad 
hoc membership. 

The next Cecil amendment was to combine Articles 18, 20 
and 21 in one Article (numbered Ig in the revised text in Docu- 
ment 24). The President suggested one change in the opening 
words, namely, to substitute “conventions hereafter to be agreed 
upon” for ‘“‘any conventions agreed upon,” so as to make it clear 
that those conventions were for the future. This change and 
one which Colonel House proposed, to insert the words “com- 
munications and” before the word “transit” in paragraph (c) 
were accepted. 

The re-writing of these three Articles into the new Article 19 
made a Covenant of twenty-four Articles instead of twenty-six. 
The resulting changes in numbering appear in Document 24; the 
Mandates Article, formerly 19, became 18, and Articles 22 to 26 
became respectively 20 to 24. 

A suggestion for a Financial Commission ? was hardly more 
than mentioned and disapproved.® 


*See p. 192 sq. 
*See p. 282 as to this suggestion, where the mention was of a financial 
council or section. 

* The remark in the text is literally from my Diary of March 18. However, 
in the minutes for March 19 of the American Economic Group, at which were 
present General Bliss, Admiral Benson, Mr. Baruch, Mr. Davis, Mr. Hoover, 
Mr. Lamont, Mr. McCormick, Mr. Robinson and Mr. Strauss, the following 
appears: 

Mr. Strauss said that the Treasury representatives had always acted 
upon the assumption that the contemplated Financial Section of the 
League of Nations would not concern itself with either post-war financial 
arrangements among the associated powers, or with the collection of 
debts from the defeated powers. That its chief function would be to 
frame financial issues in controversies which might come up before the 
League of Nations. 

Colonel House believed that it was the President’s intention, though 
he had approved the creation of a financial section, to confine its activi- 
ties to harmless questions. 


CRITICISMS AND CHANGES 293 


Cecil proposed that the final article should read as follows: 


Amendments to this Covenant will take effect when ratified 
by the States whose representatives compose the Executive Coun- 
cil and by a majority of the States whose representatives com- 
pose the Body of Delegates. Provided that if any State member 
of the League disapproves of any alteration so made it may with- 
draw from the League. 


The discussion of this proposal brought up the whole question 
of withdrawal. The result was to disapprove the proposal and 
to suggest a tentative amendment permitting withdrawal, to see 
how it would be received, although it was admitted that the 
French would be very much opposed to it. This tentative amend- 
ment read as follows: 


Any State member of the League may upon giving two years’ 
notice withdraw from the League upon reasons stated. 


Wilson stated that the majority of the delegates, led by Or- 
lando, had said that a State had the right to withdraw from the 
League under the Covenant as now drafted. Cecil said that was 
not his understanding at all; Wilson asking my opinion, I told 
him that except under the doctrine of changed conditions, which 
was known as the doctrine of rebus sic stantibus, my opinion was 
that a State did not have the right to withdraw from a treaty; 
that the doctrine of changed conditions had been used as a ground 
for any violation of a treaty; that in modern times treaties had 
usually been drawn to continue for a certain period, with a clause 
permitting denunciation thereafter, and that this was true even 
of treaties of alliance, such as the Triple Alliance, for say a twelve- 
year period. The President said that when he had lectured in 
international law he had thought that a State had the power to 
denounce any treaty; I said in reply that that was not my opinion 
as to the legal right, although as to the power I did not question 
that a State had power to denounce a treaty. Cecil said that he 
agreed with my statement. 

The question then came up as to the insertion of an Article 
that domestic affairs of a State should not be within the province 
of the League. This led to the discussion of the Japanese and 
Irish questions. The President said that it was his opinion as a 
constitutional lawyer that the treaty power was extensive enough 
to override State laws about land, and ‘that if it did so in Cali- 


*Cf. Article 26 of the Covenant. 


294 THE DRAFTING OF THE COVENANT 


fornia the question would be one between California and the 
United States as to that, and not between the United States and 


Japan. He said this was purely a hypothetical case, of course; — 


the Senate would never ratify such a treaty. He then spoke of 
the Irish question and said that he had been made very angry by 
a delegation of the Irish who had visited him while in the United 
States and had requested him to promise to ask the Peace Confer- 
ence to make Ireland independent. Of course he had refused to 
promise anything about it. He had decided then to go to Mr. 
Lloyd George and tell him what the situation was in the United 
States and ask him whether he wanted nothing done, in which 
case he would do nothing, but if he wanted something done, 
what it was; but he told him the situation and that the question 
might be raised in the United States by the Irish making a cam- 
paign against the League on this ground, and that this would 


i 


raise a racial and religious question which would have far-reach- — 
ing consequences. Of course, he said, it would be overwhelm- — 


ingly defeated and would insure the success of the League, and 
that his first impulse had been, from his fighting blood getting up, 
that he had wanted to tell them (the Irish) to go to hell, but he 
realized that while that might give some personal satisfaction it 
would not be the act of wisdom or the act of a statesman. He 
said, however, turning to Lord Robert Cecil, that the Irish ques- 
tion might get to such a state that its discussion in the League of 
Nations might be inevitable, and Cecil said that he quite agreed 
with this. The President said that the attitude of the Irish was 


that they would create such a disturbance so continuously as to — 


compel international notice to be taken of them; if an article was 
put in against interference in domestic affairs, it would be said 
by the Irish to have been put in directly as a shot at them. This 
would start the sort of campaign that he had mentioned. House 


suggested that the President might say this to the Senate Com- — 


mittee on Foreign Relations as they were urging the insertion of 
such an Article. 

On the suggestion of the President that there was some con- 
tention in the United States that a State might be compelled to 
accept a Mandate, Cecil wrote out this last paragraph of the Man- 
dates Article: 


Nothing in this.Article shall be interpreted as compelling any 
State to be a mandatary. 


1See the letter of Senator Hitchcock quoted p. 276 sq. 


CRITICISMS AND CHANGES 295 


The Cecil proposals included an additional Article regarding 
the time when the Covenant should take effect. It read as follows: 


The provisions of this Covenant shall come into effect as 
soon as it has been ratified by Great Britain, the United States of 
America, France, Italy and Japan. 


It was agreed on my suggestion that this should be left out, as 
there would undoubtedly be a general clause as to when the treaty 
should take effect, and that this would include the Covenant. 

The Japanese question was only incidentally discussed, but 
when it was mentioned I handed to Colonel House a copy of the 
dispatch summarizing the Ishii speech of March 14.1 He said 
that he had seen it, but he read it over again. 

In the course of the discussion Cecil said that the Japanese 
were talking to Hughes about some clauses for racial equality 
and that they were getting on very well with him. 

There was some talk about the Monroe Doctrine. The Presi- 
dent alluded to the fact that the Monroe Doctrine had never been 
defined and that the Senate did not want it defined. He spoke of 
the question with Mexico after the Civil War. He alluded to the 
fact that the Monroe Doctrine had permitted force to be used, or 
at least threatened, against the South American republics. He 
said that the Doctrine as originally launched had been to prevent 
the extension of the European system to the American conti- 
nents. J then handed him this extract from the text of President 
Monroe: 


The American continents by the free and independent condition 
which they have assumed and maintain, are henceforth not to be 
considered as subjects for future colonization by any European 
powers. 


This he said he had overlooked and that the Doctrine was also 
pointed against European colonization. It was agreed (without 
my opinion being asked) that it would be impossible to put in 
the Covenant a reservation of the Monroe Doctrine without a 
similar reservation of an Asiatic doctrine of the Japanese, and 
accordingly the idea was disapproved. 

The President endeavored in vain to find a copy of Senator 
Hitchcock’s letter to him? and discussed it from memory. He 


* At the Japan Society Dinner in New York. 
“Quoted at p. 276 sq. 


296 THE DRAFTING OF THE COVENANT 


spoke of his difficulty on the withdrawal question in view of 
his having told the Senate Committee on Foreign Relations 
that there could be withdrawal at any time, based on what Or- 
lando and the others had said.* 

Then the question came up about printing and I told the 
President the text could be printed so as to show the amendments, 
and possibly in the Congressional form with a line through what 
was stricken out and new matter italicized. Later on, in talking 
with the printers, I found that this was not possible and the new 
text was set up in a form somewhat similar to Document 24. 

Various meetings were mentioned: that with the Neutral 
Powers on March 20 at 3 o’clock, and probably the following 
day, and the meeting of the full Commission which was agreed 
to be called for March 22 at 10 A. M. 

The conference ended about half-past ten, when I went to 
my hotel to dinner and then to my office for a few hours. 

My account of this conference has been taken largely from 
my Diary. Another record of it made at the time was my state- 
ment at the meeting of the American Commissioners on the fol- 
lowing morning. The notes made of that meeting of the Com- 
missioners were submitted to me for correction and are as follows: 


The Commissioners stated that they understood that Mr. 
Miller had been present the previous night at the Conference 
between the President, Colonel House and Lord Robert Cecil, at 
which certain amendments proposed for the Covenant of the 
League of Nations had been discussed. Mr. Miller stated that 
these proposed amendments were of two kinds, those which had 
been agreed upon and those which had been discussed but had not 
been approved. The first category of these amendments could 
briefly be summarized as follows: 


1. A provision was added in Article 3 whereby an increase 
of membership on the Executive Council is facilitated. This 
amendment had in view the eventual possibility of Germany 
or Russia being represented on the Executive Council. 

2. A provision was added to Article 4 in which it was ex- 
pressly stated that all decisions of the Executive Council 
should be by unanimous vote unless otherwise specified. 

3. Article 7 which deals with the admission of new States to 
the League of Nations was so amended as to be positive in 
its sense rather than negative. 

4. The word “permission” in the last sentence of paragraph 
1 of Article 8 was changed to read “concurrence.” The 


+See p. 203. 


CRITICISMS AND CHANGES 297 


British suggestion to change the words “the permission of” 
to “notice to” was not accepted. 

5. Article 11 was amended to become mandatory by the sub- 
stitution of the words “the League shall’ for the words 
“the H. C. P. reserve the right,” in the first paragraph. 

6. To Article 14 was added a clause providing that the Per- 
manent Court of International Justice should also consider 
all matters referred to it by the Executive Council or the 
Body of Delegates. 

7. In the second paragraph of Article 15 the words “and that 
if any party shall refuse so to comply, the Council shall 
propose the measures necessary to give effect to the recom- 
mendation” were struck out. 

8. In Article 17 a clause was inserted stating that nothing in 
the Covenant of the League of Nations should be so con- 
strued as to force a State to be a mandatory of the League. 

g. Articles 18, 20 and 21 were assimilated into one Article for 
the sake of uniformity in the drafting. 


Two suggested amendments were also disapproved. The first 
was a proposed amendment whereby any nation could withdraw 
from the League after giving two years’ notice. This amendment 
was abandoned because of the conviction that the French Govern- 
ment would not adhere to it; but it is to be proposed. The second 
was a proposed amendment involving the weakening of Article 10. 
Both Canada and Australia were particularly interested in this 
amendment, but inasmuch as Article 10 was being relied on abso- 
lutely by France to guarantee her against future aggression from 
Germany, it was not accepted. 


The first drafts of a Monroe Doctrine clause which I saw 
were handed to me on March 19. One of them was written by 
Lord Robert Cecil and the other, very similar to it and based on 
Cecil’s draft I think, was written by Mr. T. W. Gregory, then 
Attorney General of the United States. They read as follows: 


(Cecil) Where any coercive action has to be taken in the Western 
hemisphere under Articles x, XIII, XVI, Or XVII no power out- 
side that hemisphere shall take part in such action except at the 
request of the United States of America and the other states mem- 
bers of the Ex. Council if any situated in that hemisphere. 


(Gregory) No coercive action shall be taken in the Western hem- 
isphere under Articles x, XIII, XVI, Or XVII except at the re- 
quest of the United States of America and the other States mem- 
bers of the Executive Council, if any, situated in that hemisphere. 


298 THE DRAFTING OF THE COVENANT 


When Colonel House handed me these drafts I expressed an 
unfavorable opinion regarding both of them and thereupon wrote 
out a draft of my own which read thus: 


Subject only to the provisions of this Covenant, the liberty of 
action in matters of national policy and of domestic concern here- 
tofore belonging to the States, Members of the League, is recog- 
nized as continuing. 


The idea of my draft was to cover in one general clause both 
“domestic questions” and the Monroe Doctrine. The basis of the 
form of this draft of mine was of course the Tenth Amendment 
to the Constitution of the United States. The following day I 
revised it slightly and submitted this revised draft also to House: 


Subject only to the express provisions of this Covenant, the 
liberty of action in matters of domestic concern and of national 
policy heretofore recognized as belonging to the States Members 
of the League, is recognized as continuing. 


None of these drafts had any special influence in the framing 
of the text later adopted. The draft of Cecil and the similar one 
of Gregory were clearly insufficient to cover the Monroe Doctrine ; 
at the utmost they related to only one phase of it. My own draft, 
like the others, omitted mention of the Monroe Doctrine eo nomine 


ee 


and went too far in referring to national policy generally. But — 


so far as it related to matters of domestic concern, it still seems 
to me much preferable to the language of Mr. Taft which was 
finally accepted as an amendment to Article 15. 

On the same day, March 19, was received a summary of the 


views of Mr. Root which came in a dispatch to Mr. Lamont as | 


follows: 


Senator Elihu Root stated that he was giving careful study to 
the documents in the light of the historical difficulties which com- 
plicated the task of the Peace Commission and did not want to 


express any opinion until he had matured his judgment. We did — 


not ask him for any authority to state his present personal views 
of the Covenant. He talked however with us very frankly and 
from his talk we gathered: 


1. That he fully appreciates the’ very great difficulty of the © 
Commission in getting a large number of States to agree upon 


anything that is reasonable. 


2. That he thinks there are many commendable features in the | 
plan notably the great step forward that is made in insuring com- | 


mon counsel on political disputes before war is entered upon. 


CRITICISMS AND CHANGES 299 


On the other hand he regretted: 

A. The failure to create a court and the apparent breaking 
down of the distinction that has been growing up in the last gen- 
eration between justiciable and political questions. 

B. The guarantee of political boundaries in Article 10 which 
he felt committeed the various nations including the U. S. of 
America to intervention in many boundary disputes with which 
they were not concerned. He mentioned particularly the long 
time dispute between Chili and Peru on the boundary line in the 
Arica District and asked on what side of the controversy the guar- 
antee»of the United States would be enforced. 

C. He took a very broad view of the whole problem of the 
Monroe Doctrine feeling that we very properly had an interest in 
world affairs, as the war itself had disclosed, but that our interest 
in European affairs was only to the extent that they threatened to 
become world questions, that our force should be put back of Euro- 
pean disputes only when required to protect world order and that 
conversely the eastern hemisphere should not come into the west- 
ern except under the same conditions. Without attempting to tech- 
nically state his views it seemed to us that he substantially took the 
position that while we had an interest and responsibility in Euro- 
pean affairs it was a secondary interest and responsibility and that 
their position in the eastern hemisphere was similar to ours in the 
western. 

D. That the provisions as to voting needed clearing up; that if 
the proposed organs of the league were merely international con- 
ferences the rule as expressed by Lord Robert Cecil in his speech, 
that unanimity was required except where the contrary was pro- 
vided, might prevail. However, it was not clear from the instru- 
ment whether the bodies created would merely be conferences or 
whether the league would be a union or even a confederation and 
that it might well be urged that questions would be decided by 
majority vote except where the contrary is specifically stated. 

We found Senator Elihu Root’s whole attitude toward the 
documents temperate and constructive. He plainly indicated his 
hope that the discussion should not be along partisan lines, the 
issues involved being so great. 

In this connection you may be interested in knowing that today 
papers announce the formation of a nation-wide non-partisan or- 
ganization of which Henry Watterson of Louisville is President 
and George Wharton Pepper of Philadelphia an active Director the 
purpose being to oppose the Covenant in its present form. Lodge 
is to have a public debate with President Lowell in Boston next 
week. Meanwhile Senators Borah, Reed and Thomas are speak- 
ing against the Covenant every night, the newspapers reporting 
that they have large audiences. 


300 THE DRAFTING OF THE COVENANT 


My comment on Senator Root’s views, expressed in a letter of — 
March 19 to Mr. Lamont was this: 


You have asked me to comment on the dispatch regarding Sena- 
tor Root’s preliminary views of the Covenant, which are expressed 
with his habitual American and statesmanlike attitude. I shall 
refer to them under the lettered headings of the paper you handed 
me. 

A. I believe that both Senator Root and the Administration 
would go farther in creating a court and in drawing a distinction 
between justiciable and political questions of dispute than the 
Senate would be willing to go. I do not believe that there would 


ae Pe, 


‘ 


be any difficulty here on that question if Paris did not feel sure 


that there would be difficulty in Washington. 
B. The question of boundary disputes presents some difficulty. 


We are certain to be at least sentimentally interested in boundary — 


disputes in South America, as we are in the Tacna-Arica dispute 
in which Peru asked us to mediate. Under the Covenant, if both 


the disputants were members of the League, there would be either — 


an arbitration or an investigation. If neither were a member, the 
matter would simply be one which would come under the general 
clauses of Article x1 if war were threatened or broke out. If one 
of the parties were a member and the other not, which would per- 
haps be the case with Peru and Chili, the result, I should think, 
would be either an adjustment of the dispute by agreement, or its 


investigation and adjustment according to the result. I say this — 


particularly in view of the fact that the Tacna-Arica question is 
one which is largely financial in its nature. 
C. The question discussed is not only one of the highest politi- 


cal importance but of immediate importance. France does not — 


think that our interest in a future attack of Germany on France is 
secondary but primary, and feels that that possibility should be the 
first concern of the world in general and of America in particular, 
while admitting that no such attack for the next few years is pos- 
sible. Whether this feeling on the part of France is right or 
wrong is not the question, for it exists in a degree which it is 
almost impossible to overstate, and any attempt to limit our respon- 
sibility in the matter would defeat the whole Covenant, for France 
would prefer then to make a different kind of peace with Germany 
and not to have a League. Certainly without the League we could 
hardly refuse her the right to make a peace with Germany which 
would let her feel secure, but such a peace would then be made 
as would be contrary to everything we have stood for. 

The position of France is that our guarantees must be strength- 


ened, and however desirable it might be it seems impossible in a 


League of Nations to devise a formula which would recognize the 


CRITICISMS AND CHANGES 301 


wishes of France and not give, at least technically, the same sort 
of guarantees to Poland or Greece. 

It would be possible, of course, to make an alliance with 
France to that effect but any such idea is the opposite of the idea 
of the League of Nations. 

D. It is proposed to add to Article tv the following clause : 


“Except where otherwise expressly provided in the present 
Covenant, decisions at any meeting of the Body of Delegates 
and of the Executive Council require the agreement of all the 
States represented at the meeting.” 


The printing of a new text to show the changes agreed to 
on March 18 by Wilson and Cecil? was going on and was finished 
just before breakfast on March 20. I have already referred to the 
form of this paper,? which is Document 24. There was also 
printed a corresponding French text which it is not necessary to 
reproduce. The basis of this was the French text of February 14, 
the necessary changes in which were made in my office. 

The changes in the text of the Covenant agreed on at the 
conference of March 18 between Wilson, Cecil and House repre- 
sented progress in the direction which was of supreme impor- 
tance at this stage. It was vital that the changes desired by 
American public sentiment should be made. President Wilson 
had before him what was really an authoritative statement of 
such necessary changes in the six points mentioned in the letter 
of Senator Hitchcock which I have quoted.* I call this an 
authoritative statement because Senator Hitchcock was the act- 
ing leader * of the Democratic party in the Senate and he was 
fully in touch with Senatorial sentiment. 

President Wilson was entirely willing to meet these desires 
and the record that I make here will prove this. The idea that 
he was wont arrogantly to reject suggestions of others is a myth 
of partisan hate. The last three of Senator Hitchcock’s points 
had now been completely covered; the first three were under dis- 
cussion and were to be covered, the Monroe Doctrine, domestic 
questions and withdrawal. 

There was another essential, not quite so vital as the insertion 
of the changes which American opinion desired, but still to my 


*See p. 283 sqq. 

? See p. 206. 

7 At p. 276 sq. 

“Senator T. S. Martin of Virginia was titular leader until his death on 
November 12, 19109. 


302 THE DRAFTING OF THE COVENANT 


mind of the greatest importance. New matter in the Covenant 
should be kept out as far as it was humanly possible to do so. 
The world had had before it for a month or more a text for dis- 
cussion; there was no insistent demand anywhere for additions 
other than those desired by America; the Covenant permitted its 
own amendment; future changes should be left to the future 
League. 


CHAPTER XXIV 
MEETINGS WITH THE NEUTRAL POWERS 


On March 20 and 21 a Sub-Committee of the Commission on 
the League of Nations held meetings with the representatives 
of thirteen Neutral Powers to discuss the Covenant text of Feb- 
ruary 14. The Sub-Committee included Cecil, who presided, and 
House, Bourgeois, Hymans, Veniselos and Vesnitch; at these 
meetings the Draft was discussed Article by Article. Various 
Neutral Powers presented a number of textual amendments; in 
one Document (25) will be found the minutes of the two meet- 
ings, in French and in English; with them are the amendments 
proposed. 

The Swiss Government, which was very actively in favor of 
the establishment of a League of Nations, had previously pre- 
sented a Memorandum of general comments on the Draft of 
February 14, which it seems appropriate to print here. This 
Memorandum (quoted below), the exact date of which is uncer- 
tain, dealt somewhat with a question of primary interest to Swit- 
zerland, namely, her status of neutrality, and this point had been 
more elaborately treated in a previous Swiss Memorandum, to 
which I shall refer again :? 


The Swiss Federal Council have repeatedly expressed their 
hearty and decided approval of the idea of a League of Nations. 
They therefore welcome the draft prepared by the Conference of 
February 14th, 1919, as an important and decisive step towards 
the realization of the great ideal. From the special point of view 
of Switzerland, however, the Government deems it necessary to 
give expression to the following wishes: 

1. Switzerland considers the exclusion of any States, especially 
of those depending by their geographic position and the needs of 
their economic life on their intercourse with members of the 
League, as apt to provoke counter-alliances and thereby to en- 
danger peace. It should be formally declared that all States offer- 
ing the necessary guarantees for the fulfilment of the duties in- 
volved by the membership of the League, are to be admitted. 


*See p. 420 sqq. 
303 


304 THE DRAFTING OF THE COVENANT 


2. For the reasons exposed in the memorandum? of Febru- 
ary 8, 1919, Switzerland must maintain her neutrality, all the more 
as according to the draft of the Paris Conference war remains one 
of the methods of defending national interests which are still recog- 
nized by international law. If Switzerland was to sacrifice her 
neutrality for the exceptional cases in which war is waged against 
an illegitimate war, her neutrality would scarcely be respected in 
all ordinary cases of war. Switzerland believes, moreover, that 
even in a common military action of the League she could render 
greater services by her neutrality than in taking an active part in 
a campaign. It might besides be worthy of consideration to ex- 
amine whether permanently neutral States with an inviolable ter- 
ritory are not especially appropriate for sheltering the residence of 
the League. 

It is understood that neutrality could not be interpreted as al- 
lowing any sort of assistance to be given to the States in conflict 
with the League. 

3. Switzerland would have welcomed an absolute enforcement 
of peace in the League by means of a disposition entirely prohibit- 
ing war. At all events, she believes it to be most desirable that the 
principle of compulsory arbitration be assigned a field as wide as 
possible within the system of the League and that an intervention 
of the Executive Council or an appeal to that body be possible only 
in case a decision has been reached neither by a commission of 
conciliation nor by a tribunal of arbitration chosen by the parties. 
Switzerland feels bound to lay stress upon this wish, especially as 
other States than the Great Powers are only granted a very limited 
representation in the Executive Council. The decision whether an 
international dispute is justiciable or not, should if possible not be 
dependent on the discretionary power of the parties but should be 
reached by a body enjoying all the essential attributes of a Court 
of Law. 

The contradiction which seems to subsist between Article x11 
(paragraph 2) and Article xv (paragraph 2 in fine) should be 
removed through the acceptance of the wider interpretation which 
may be gathered from the text of Article x1. Consequently, in 
case the defendant party accepts the recommendation of the Ex 
ecutive Council, war should at all events be excluded, even if this 
recommendation has not been approved of unanimously in that 
Council. 

4. Switzerland, though recognizing the importance of the Great 
Powers for the activity of the League, would nevertheless wish the 
principle of equality of States to be better observed. Especially 
the organization of international jurisdiction should be based on an 
entire equality of States. 


*See p. 429 sqq. 


MEETINGS WITH THE NEUTRAL POWERS 305 


5. It is desirable that the powers of the League be delimited 
more distinctly, especially that intervention in the interior affairs 
of the members of the League be formally excluded and that, on 
the other hand, the development of international law be taken in 
hand by the Body of Delegates. 

6. It should be clearly determined whether the League is to be 
indissolvable or whether a withdrawal by notice shall be admissible. 
If, according to Article xxvi a majority is enabled to enact gen- 
erally binding decisions, there should either be some treaty pro- 
visions establishing certain Fundamental Rights or else a right of 
withdrawal should be conceded. 

7. As until now neutral States have not yet had any oppor- 
tunity of stating their opinion, the draft of February 14, 1919, 
should yet be possible of certain modifications. Switzerland would 
have preferred if the Treaty of Peace had only contained a few 
fundamental principles concerning the League of Nations, and if 
it had left the Statute of the League to be worked out at a general 
Conference meeting immediately after the conclusion of peace. 


The minutes of the meetings with the Neutral Powers (Docu- 
ment 25) render unnecessary any detailed review of them. Dis- 
cussion of the composition of the Council and the provisions of 
Article 16 related to some questions which have been greatly 
debated since and which have not yet been fully answered. Pro- 
posals were made for the establishment of Commissions of Con- 
ciliation; and various Powers wanted detailed clauses for the 
establishment of the Permanent Court of International Justice. 
The elaborate Scandinavian proposal? which was subsequently 
presented to the Committee of Jurists which drafted the Statute 
of the Court was referred to in this connection. 

It was well recognized at these meetings that there were 
serious differences between the French and the English texts as 
they then stood; my notes contain a reference to this; and while 
the minutes in French do not mention it, according to the Eng- 
lish minutes, Cecil specifically said that the English text of the 
Covenant was the authentic one. 

My own part at these discussions with the Neutrals was that 
of an observer. As the remarks were in English or in French at 
the taste of the speaker, Professor Rappard, who was one of the 
Swiss delegates, sometimes acted as a volunteer and highly ex- 
pert interpreter. In theory, I suppose that I took the place of 
Colonel House at times when he went out of the room; but 


*See Permanent Court of International Justice, Advisory Committee of 
Jurists, Documents Presented to the Committee (1920) p. I51 sqq. 


306 THE DRAFTING OF THE COVENANT 


really I had nothing particular to do, so took some notes; and 
while perhaps these add little if anything to the minutes, I repro- 
duce them here: 


Cecil takes chair. Asks for procedure Article by Article. 

Argentine speaks generally; cannot speak specifically as to 
details; hopes for instructions. 

Venezuela asks whether draft is that of 14 February. 

Cecil answers Yes; project not adopted. 

Venezuela: Would neutrals be asked their advice as to subse- 
quent amendments? 

Bourgeois speaks of amendments already presented ; made pub- 
lic; may be discussed. 

Cecil says any subject may be discussed that is relevant, but 
members of Commission will not now present amendments. 

Swiss agrees to detailed discussion. 

Dutch asks as to French or English text. (Both, differences 
privately recognized). 

Chili expresses adhesion. 


ARTICLE I 


No observations. 


ARTICLE II 


Huber, Swiss, proposes amendment. 

Spain proposes two amendments. 

Spain against (B) of Swiss. Favors (A) and (C) of Swiss. 

Spain asks the meaning of “sphere of action of the League”; 
asks to add “‘visées par les articles du présent Pacte.” 

Norway asks for yearly meetings at times fixed in advance. 

Cecil says that fixed periods were intended, but at the discre- 
tion of the Body of Delegates. 

Norway asks for five delegates instead of three—for the pur- 
pose of different political opinions. Asks that meetings of B. of D. 
shall be public except when necessarily private. 

Holland wants precision as to rights of League as against rights 
of States. 

Cecil says that only when sovereignty is expressly limited, is it 
limited. 

Venizelos calls attention to final proposal of Swiss. 


ARTICLE III 
Denmark proposes 2 delegates for each of the five Powers and 
8 for eight other Powers. 


Holland asks for precision between Body of Delegates and 
Executive Council. 


MEETINGS WITH THE NEUTRAL POWERS 307 


Cecil replies that this is a question for each Article as it comes. 

Sweden wants more small States in the Executive Council, and 
supports Denmark. 

Chili wants election of 4 small States left to small States, not 
to all States. 

Norway asks for an Executive Council of 15. 

Holland thinks the principles by which 4 small States should be 
chosen should be stated. 

Spain asks for different classes of small States. 

Switzerland supports 10 votes for 5 Great Powers and 8 small 
Powers. 

Sweden supports a definite statement as to method of choice 
of small Powers. 


ARTICLE IV 
No observations. 


ARTICLE V 


Denmark proposes choice of Secretary General by Body of 
Delegates. 

Switzerland supports. 

Holland supports. 

Spain wants personnel distributed. 

Sweden supports Denmark. 


ARTICLE VI 
No observations. 


ARTICLE VII 


Holland asks as to whether colonies and dominions have a 
separate vote. 

Switzerland proposes her redaction. 

_Norway wants a majority vote to admit. 

Denmark supports Switzerland. 

Cecil points out that Swiss amendment is more than form. 

Spain prefers original. 


ARTICLE VIII 


Dutch amendment—“L’Assemblée des Délégués arréte une loi 
(un réglement) concernant la réduction des armaments.” Expla- 
nation is that the “law” would require unanimity. 

Spain prefers present text, but proposes authority to Execu- 
tive Council to certain numbers to authorize increase. 

Denmark proposes that prohibition of private manufacture be 
the subject of plan. 


308 


THE DRAFTING OF THE COVENANT 
Bourgeois recalls French amendments. 
Spain supports them. 


ARTICLE IX 


Denmark proposes an addition for control by the Commission. 
Sweden supports Denmark. 


ARTICLE X 
Chili proposes guarantee of all treaties. 
Cecil: Commerce treaties? 
Chili: Yes. 

ARTICLE XI 
Nothing except language. 

ARTICLE XII 
Swiss amendment, 

ARTICLE XIII 


Holland proposes permanent Court of Conciliation. 
Sweden supports Swiss. 


March 21. 
Dutch ask as to ambiguity between x11 and xIII. 
ARTICLE XIV 


Swiss proposes amendment. 

Danish amendment proposed. 

Norway supports. 

Question as to whether the constitution of the Court should 


be determined now. 


Swiss supports the Court Plan. 


ARTICLE XV 


No observations. 


ARTICLE XV1 


Holland proposes two amendments. 
Denmark proposes three amendments. As to the second of 


these Cecil asks if a perpetually neutral State is bound by any of 
the three obligations—by (1) commercial etc. by (2) military, by 
(3) passage by land. | 


Denmark would agree to (1) not (2) or (3). 
Cecil says the question is really one of (3) as (2) is only con- 


ditional. 


MEETINGS WITH THE NEUTRAL POWERS 309 


Sweden wants a distinction made in economic matters—some 
trade permitted. 
Spain points out a constitutional difficulty as to (3). 
Norway also. 
Cecil asks for statements as to constitutional difficulties. 
ARTICLE XVII 


Chili asks for a modification that would leave out last half of 
Article. 

Cecil says that no State that does not come in can expect much 
sympathy. 

ARTICLE XVIII 
Spain calls attention to contréle—supervision ; surveillance. 
Spain proposes amendment as to colonies. 
ARTICLE XVIII BIS 


Proposed by Swiss. 


ARTICLE XIX 
No discussion. 


ARTICLE XX 
Spain and Switzerland approve. 
Argentine. 

ARTICLE XXI 
Very little said. 


ARTICLE XXII 
Cecil in reply to Spain says express consent necessary even 
if all parties are in League. 
ARTICLE XXIII 


No discussion. 


ARTICLE XXIV 
Nothing said. 


ARTICLE XXV 


Discussion as to offensive and defensive alliances. 


ARTICLE XXVI 
Swiss amendment. 


CHAPTER XXV 
ELEVENTH MEETING OF THE COMMISSION 


THE next definite step in the drafting of the Covenant was ~ 
that reached at the conclusion of the meeting of the Commission 
on the League of Nations on March 26, the Thirteenth Meeting 
of the Commission and the third of its meetings after Wilson’s 
return to Paris. In connection with any account of those three — 
meetings, it will be convenient to mention some of the discussions ~ 
outside of the Commission during this period. 

It must of course be remembered that I do not attempt . 
to paint a picture of other concurrent negotiations, although — 
some of these were more or less directly related to the drafting : 
of the Covenant. The French were bargaining about the Rhine 
and Lloyd George wanted to get something in return for an agree- 
ment on the Monroe Doctrine clause. To some of those nego- 

| 


tiations I shall refer later. 
The first of the three meetings! of the Commission on the 
League of Nations to consider the Covenant of February 14 in the 
light of developments since that date was held on March 22. 
During this Eleventh Meeting, which commenced at three o’clock 
and lasted for about four hours, the Commission went over the 
Preamble and the first eight Articles of the Covenant. 
Before reviewing just what was done, it should be pointed out — 
that the papers before the Commission included of course the Eng- 
lish and French texts of February 14, and also the English re- 
print showing the changes agreed upon at the meeting between 
Wilson and Cecil on March 18 (Document 24) and a print of © 
a corresponding amended French text. The various amendments 
proposed by the Neutral Powers (see Document 25) were also © 
on the table, although it was agreed that these were not to : 


: 


regarded as Bae unless put forward by a member of the 
Commission. 
The French minutes ? of this meeting of March 22 (in Doc- 
*Document 24 is a convenient reference for the English text considered 
by these three meetings and for many of the amendments as well. 
°?My texts of the French minutes of the three March meetings of the 


Commission are each marked “Epreuve.” So perhaps they differ somewhat 
from the final form. 


310 


ELEVENTH MEETING OF THE COMMISSION 311 


ument 20) contain quite a full yet not wholly complete account of 
the proceedings. The English minutes are in general more sum- 
mary; and at one or two points my own notes are supplementary. 

As will be shown in detail, the changes agreed to on March 18 
between Wilson and Cecil (see Document 24) were moved by the 
latter as amendments to the Commission text of February 14. 
Mostly these changes were adopted as offered, thus making the 
text of March 18 to this extent the Commission text, including 
the substitution throughout (after the Preamble) of “States 
Members of the League’ for “High Contracting Parties.’”” How- 
ever, almost at the very beginning it was agreed that a Drafting 
Committee should be appointed, so that in a sense every amend- 
ment passed was subject to later action of the Drafting Com- 
mittee on the language. 

The account of the opening of the meeting in the English 
minutes is as follows: 


At the request of President Wilson, Lord Robert Cecil ex- 
plained that two meetings had been held under his chairmanship, 
at which views had been exchanged with the representatives of 13 
Neutral Governments. The Neutrals had seemed to show general 
approval of the Covenant. In accordance with the desire of an 
illustrious member 1 of the Peace Conference, he proposed that 
any suggestions made by, or intended to satisfy, the Neutrals 
should be put forward as coming from members of the Com- 
mission. This was agreed to. 

President Wilson said the Commission would now resume the 
consideration of the Covenant. 


The procedure agreed on, which is not above mentioned, was 
that the text should be taken Article by Article. The French 
minutes indicate this and show also that Bourgeois and Larnaude 
took part in the discussion. This is also indicated in my notes 
which I now quote: 


President speaks of conferences U. S. and here. Asks Cecil 
to speak. 

Cecil reports. 

Bourgeois, Larnaude; Procedure. 

President suggests procedure Article by Article, etc. 

President asks for big text.? 


* Meaning Clemenceau. 
*i.e. Document 24. 


312 THE DRAFTING OF THE COVENANT 


In the English minutes the account of the discussion of the 
Preamble includes the following: 


He (Cecil) proposed a method by which Germany might be 
made to agree to the Covenant without becoming a member of the 
League. The end of the Preamble should run: “the High Con- 
tracting Parties agree to the following Covenant as the constitu- 
tion of the League of Nations” and “States Members of the 
League’’ should be substituted for “High Contracting Parties” in 
the body of the Covenant. This was agreed to.1 

oS * * * *. * 


It was further agreed that the Drafting Committee which 
would be required later should have orders to make no changes of 
meaning; when the Committee had finished, the revised draft 
should be circulated to members of the Commission: if anyone 
objected, the old wording should stand. 


What this means as to the Preamble is that it was passed in 
the form agreed to by Wilson and Cecil on March 18 (see Doc- 
ument 24) including the change of one word in its opening 
phrase not mentioned in the above minutes. My notes simply say 
that the Preamble was adopted; and there is no reference in the 
French minutes to the agreement about the Drafting Committee. 
However, as will be seen, the Drafting Committee was frequently 
mentioned in the subsequent discussions. 

Article 1 was somewhat changed on the proposal of Larnaude, 
who objected to the use of the word “sessions” in the French for 
reasons which the English minutes very naturally do not make 
clear at all. The result in the English text was a sentence of 
fewer words, which was not only clearer but more accurate. To 
show this, I print the text as it stood, with the omitted words 
italicized : 


The action of the League under the terms of this Covenant 
shall be effected through the instrumentality of meetings of a Body 
of Delegates representing the States Members of the League, of 
meetings at more frequent intervals of an Executive Council, and 
of a permanent international Secretariat to be established at the 
Seat of the League. 


No change was made in Article 2. Cecil proposed and with- 
drew an amendment looking toward publicity as to the Assembly. 
*Here follows a remark by Hymans regarding Belgian drafting amend- 


ments. The English minutes as first written up do not contain this and 
neither do the French minutes. 


| 


ELEVENTH MEETING OF THE COMMISSION 313 


According to my notes the text of the amendment was to add the 
following words to the Article: 


The proceedings of the Body of Delegates shall be made 
public unless it is otherwise determined. 


The English minutes give a very summary account of the mat- 
ter. However, as the French minutes show, there was consider- 
able discussion of the proposal and a good deal of opposition to it. 
Two of the remarks are worth quoting: 


Larnaude: II faut éviter de reproduire servilement les régles 
qui gouvernent le Pouvoir législatif, le Pouvoir exécutif, le 
Pourvoir judiciaire d’un Etat moderne. Le seul a atteindre 
est de créer des organismes de nature a éviter la guerre et de leur 
donner les régles les plus efficaces de fonctionnement pour attein- 
dre ce résultat. 

Orlando: Il a fait remarquer, que plusieurs matiéres assez im- 
portantes n’étaitent pas traitées dans le Pacte; on lui a répondu que 
la Société aurait a faire elle-méme, beaucoup de réglements pour 
combler les lacunes. Cette réponse lui a paru trés justifiée et il 
demande qu'elle soit appliquée a la présente circonstance. Le 
devoir de la Commission est d’agir vite, et le plus pratique sera 
de s’en rapporter a l’expérience de la Société pour réglementer la 
publicité des séances et des décisions. 


Orlando’s suggestion that the question be left to the experience 
of the future was wise. Certainly this experience has tended 
more and more toward publicity not only in the Assembly but 
also in the Council. 

The French minutes also say that Cecil proposed that the 
number of possible representatives for each Member in the Assem- 
bly be raised from three to five, a figure which the Commission had 
previously rejected. It is added that after observation by Ves- 
nitch, Hymans and Makino, this proposal was withdrawn. I 
could not now say that this statement in the French minutes is 
inaccurate; but my notes, like the English minutes, are blank 
regarding it. 

Regarding Article 3, the English minutes are neither complete 
nor wholly accurate; as there are some slips in the French minutes 
also, I give my own account of the proceedings: “In order to 
meet criticism that the League was dominated by the Five Great 
Powers,” as the English minutes put it, Cecil first moved to in- 
sert in the first paragraph of the Article the words “‘the repre- 


314 THE DRAFTING OF THE COVENANT 


sentatives of States! permanently represented on the Council 
shall not participate in this selection.” 

The effect of this amendment would have been that the choice 
of the non-permanent members of the Council would have been 
made by the eligible Powers themselves exclusive of the Great 
Powers. 

While this was pending,” Hymans proposed an entirely differ- 
ent system, the text of which in the French minutes is this: 


le Conseil exécutif se compose de 9 membres élus dans son 
sein par l’Assemblée des Délégués. Ils seront tous citoyens d’Etats 
différents parmi lesquels figureront nécessairement cinq repré- 
sentants, des Etats-Unis, de 1’Empire britannique, de la France, 
de I’Italie et du Japon. 


This was a most extraordinary proposal and one utterly im- 
possible of acceptance. What my own notes say about it is 
“Belgian amendment proposed and overwhelmed.” Thereupon 
the Cecil amendment was withdrawn. 

These two amendments being dropped, Cecil then moved the 
new second paragraph of the Article as he and Wilson had 
agreed to it, adding to it, however, a proviso of his own, so that 
it read: 


The Executive Council may, subject to the approval of the 
majority of the Body of Delegates, co-opt on the Council repre- 
sentatives of States other than those specified above, provided that 
in any such increase due regard shall be had to just proportional 
representation of States not permanently represented on the 
Council. 


In this form the paragraph was adopted, although the French 
minutes do not mention the proviso. 

Bourgeois then suggested, as the French minutes relate, that 
there ought to be an amendment providing for an immediate 
meeting of the Council in cases of urgency. Consideration of 
this, however, was postponed until Article 11 was reached, in 
which Article indeed such a provision now appears. My notes 
mention this amendment, but the English minutes make no al- 
lusion to it. 


*The English minutes have a “not” here, reversing the meaning. 

* The English minutes put the proposal later; but this is a mistake, as both 
the French minutes and my notes show. Indeed, an earlier draft of the 
English minutes omits Hymans’ proposal entirely. Its later insertion puts it 
at the wrong point. 


ee ee 


ELEVENTH MEETING OF THE COMMISSION 315 


The idea of drawing a dividing line between the functions of 
the Council and those of the Assembly, with a more or less pre- 
cise definition in each case, has been frequently suggested since 
the League was established. To some extent it had been proposed 
by Switzerland? and during the discussion of Article 3 it was 
brought forward by Hymans. The remarks of Wilson and of 
Cecil which ensued seem to be much better reported in the French 
minutes than elsewhere. Cecil admitted that no clear distinction 
had been drawn in the text and thought, wisely, that it was prefer- 
able to leave the matter to solve itself by the later action of the 
two bodies of the League. Wilson supported these views, parti- 
cularly because he was unwilling to exclude any matter whatever 
from the consideration of the Assembly; Hymans expressed him- 
self as convinced that it would be better to leave the question to 
the experience of the future and withdrew his proposal. 

Finally, Cecil moved an amendment? to the last paragraph of 
Article 3, in which no change had been proposed on March 18. 
It then read thus: 


Invitations shall be sent to any Power to attend a meeting of 
the Council at which matters directly affecting its interests are 
to be discussed and no decision taken at any meeting will be bind- 
ing on such Power unless so invited. 


The new text adopted as Cecil suggested was this: 


Invitation shall be sent to any Power to attend and sit as a 
Member at any meeting of the Council at which matters directly 
affecting its interests are to be discussed. 


Article 4 was changed only by the insertion of the unanimity 
paragraph as agreed to by Wilson and Cecil on March 18, read- 
ing as follows: 


Except where otherwise expressly provided in the present 
Covenant, decisions at any meeting of the Body of Delegates or 
of the Executive Council require the agreement of all the States 
represented at the meeting. 


In about the same language the foregoing text is now the first 
paragraph of Article 5 of the Covenant. Cecil’s statement is 
of some importance in connection with the interpretation of 
that Article, for he spoke of the amendment as ‘merely a spe- 


*See Document 25, Swiss proposal regarding Article 2. 
* The French minutes speak of this as an added paragraph. 


316 THE DRAFTING OF THE COVENANT 


cific statement of a fundamental principle of the League.” 
There was no dissent from this view, although, as the French 
minutes show, there were some observations as to possible ex- 
ceptions to be expressed ; but it seems clear that it was agreed that 
the ordinary international rule is generally as applicable to the 
Council and to the Assembly as to other international Confer- 
ences. 

When Article 5 was reached, Wilson read a Note from the 
Swiss Government proposing Geneva as the Seat of the League; 
the text of this note does not appear ; and Hymans made a declar- 
ation for Brussels which is given in full in the minutes. My notes 
on the Article read thus: 


President reads letter from Swiss. 

Hymans speaks for Brussels. 

President says only Belgium, Holland and Switzerland have 
proposed themselves. Suggests Sub-Committee. 

Cecil proposes Committee of 4 to be appointed by President. 


The various accounts are not entirely in accord as to the 
discussion. There is no mention made in the English minutes or 
in my notes of the remarks of Larnaude and Bourgeois which 
appear in the French minutes. According to this record, Lar- 
naude suggested the neutrality of Switzerland as an obstacle to 
her admission to the League. The result of the discussion was 
to decide upon the appointment of a Sub-Committee to consider 
the question.t. The fact was that the sentiment was overwhelm- 
ingly in favor of Geneva. 

The statement has often been made that if it had not been for 
Wilson’s opposition the Seat of the League would have been 
fixed at Brussels ; in truth the feeling the other way was so strong 
that it is very doubtful if Brussels could have been chosen even 
with Wilson’s support. The general sentiment was that a country 
which had not been engaged in the War should be selected. The 
British were outspokenly in favor of Geneva; there was hardly 
a country except France and Belgium which would have favored 
the choice of a capital so obviously under French influence as 
Brussels. It is noteworthy that none of the other Powers repre- 
sented on the Commission, either at this meeting or at the earlier 
meeting of February 5, the Third Meeting, said a word in favor 
of the Belgian request: 

Thereupon, on Cecil’s proposal,? the provision as to the 


*This Committee was named at the Thirteenth Meeting of the Commission. 
* Cf. the Danish Amendment in Document 25. 


ELEVENTH MEETING OF THE COMMISSION 317 


Secretary General which in the earlier text had read simply “who 
shall be chosen by the Executive Council,” was altered so as to 
require confirmation by the Assembly and also to make specific 
provision for the first occupant of the post: 


The first Secretary General shall be the person named in the 
protocol hereto and his successor 1 shall be chosen by the Body of 
Delegates on the nomination of the Executive Council. 


Article 6 was simply referred to the Drafting Committee to 
consider the language, in view of the suggestion of Larnaude 
that the word “inviolability” was a more accurate expression than 
“extraterritoriality.” 

As to Article 7, concerning the original membership of the 
League and the later admission of Members, there was a discus- 
sion which my notes at one point call “violent.” There is quite 
a long account of the debate in the minutes, and here the English 
are very similar to the French, except that the latter omit the 
text of the amendments proposed. 

At the outset Cecil moved to amend the Article so as to read,” 
as had been agreed on with Wilson on March 18: 


The original members of the League shall be those States 
which are named in the Protocol hereto. Any fully self-govern- 
ing State, including dominions and colonies, may become a mem- 
ber of the League if its admission is agreed to by a two-thirds 
majority of the Body of Delegates provided that it is able to give 
effective guarantees of its sincere intention to observe its interna- 
tional obligations, and shall accept such regulations as may be pre- 
scribed by the League in regard to its naval and military forces 
and armaments. 


As Wilson did not press his idea of substituting a simple 
majority of the Assembly for a two-thirds majority, the differ- 
ence in views was limited to what was apparently a simple matter 
of procedure suggested by the first sentence of the proposed new 
text, “a simple question of form,” Cecil called it. This was 
whether the neutral States, some of which, as all agreed, should 
be early invited to become Members of the League, were to be 
deemed “original’’ Members or not. The text of February 14 
spoke of a Protocol to the Covenant which should contain the 
names of the invited neutral States. Thus the names of the 


* Plural in the English minutes. 
“Cf. the Swiss draft in Document 25. 


318 THE DRAFTING OF THE COVENANT 


signatories to the Treaty were not to be in the Protocol, 
so that the earlier draft may be said to have contemplated three 
classes of members: the Allied and Associated signatories to the 
Treaty of Peace, neutral States named in the Protocol and any 
Members subsequently admitted by vote of the League. Under 
the new draft as proposed by Cecil, and as he and Wilson had 
agreed on March 18, the Protocol was to contain the names of 
all the original members of the League, Allies and Neutrals. 

Now, the mere question whether neutral Members of the 
League should or should not be regarded as original Members 
was perhaps not of great consequence; but lying back of this 
question of nomenclature and procedure was the much larger 
question as to just when and how the Covenant was going into 
force. Bourgeois for the French went so far as to reserve the ques- 
tion as to whether the Covenant was to be incorporated in the 
Treaty of Peace at the time of signature or at the time of rati- 
fication, although just what was meant by the very extraordinary 
language of this reservation was not explained. Even Cecil’s 
idea of a Protocol containing the names of all the original mem- 
bers, Allies and Neutrals, presented real difficulties which had been 
mentioned previously.1_ The word “Proctocol” suggested a doc- 
ument separate from the Treaty, perhaps signed at the same time, 
perhaps to be signed later and perhaps subject to separate rati- 
fication. 

These difficulties became so much emphasized during the dis- 
cussion of a Protocol to be signed after the Treaty that I wrote 
a note for the President on the matter during the meeting as 
follows : 


The matter of procedure is one of great difficulty for us. It 
is getting to the point where the Senate will ratify the treaty and 
not the Protocol and then there will be no League. 


Finally, at the end of the debate, I wrote out a substitute pro- 
posal which the President offered and the whole matter was re- 
ferred to the Drafting Committee; all of which is indicated in my 
very brief notes of the discussion of the Article: 


Cecil proposes amendment—as in text. 

Portuguese suggests amendment which Cecil sits on. 
Larnaude explains to Bourgeois. 

Orlando overcome with laughter. 

Cecil excepts Mexico. 


*See p. 281. 


: 


ELEVENTH MEETING OF THE COMMISSION 319 


Violent discussion by Hymans, W. W. and Cecil. 

Discussion of question of procedure. 

Cecil says Protocol would be signed after Treaty. 

I handed Colonel House a copy of my Monroe Doctrine 
(amendment)* marked “M. D.” 

After great discussion, I prepared a draft of vit, which, with 
a change by the President, was sent to the Drafting Committee. 


My substitute proposal is set forth in the English minutes, 
reading as follows: 


The original members of the League shall be those of the 
signatories named in the schedule annexed to the Covenant, and 
also those other Powers named in the schedule who are hereby 
invited subsequently to accede to the Covenant. 


I still have the paper which I wrote, with the change in it 
made by Wilson, the insertion of the word “subsequently”. The 
draft may be compared with the present opening language of 
Article 1 of the Covenant. 

The question of the method of accession did not come up and 
I did not incorporate it in my draft, although I had previously, 
on the same day, drawn an accession clause in the following lan- 
guage :? 


States named in the Schedule hereto which are not Signatories, 
may accept this Covenant by a Declaration of Accession thereto 
without reservation. Such Declaration shall be deposited before 
January 1, 1920, with the Government of France to be transmitted 
to the Secretary General of the League. Notice thereof shall be 
sent to all other States Members of the League. 


Article 8, the Disarmament Article, with the March 18 
changes, * was passed, incorporating also a Japanese amendment 
to the effect that any disarmament plans adopted should be “‘sub- 
ject to reconsideration and revision at least * every ten years’; 
but there was another detailed discussion of the French amend- 
ment for a Commission of Verification brought forward again 
by Bourgeois, and which I once more quote: 


Les Hautes Parties Contractantes résolues a se donner franche 
et pleine connaissance mutuelle de l’échelle de leurs armements et 


* Quoted p. 2098. 

* Cf. Article 1 of the Covenant. 

* They are not given with complete accuracy in the English minutes, where 
the words “by the several Governments” are omitted. Cf. Document 24. 

“The words “at least” were added by Wilson. 


320 THE DRAFTING OF THE COVENANT 


de leur programme militaire et naval, ainsi que des conditions de 
leurs industries susceptibles de s’adapter a la guerre, institueront 
une Commission chargée des constatations nécessaires. 


My own notes as to this Article 8 are rather meagre; but I 
insert them here: 


Cecil proposed his amendment. 

Japan amendment adopted with addition of “at least.” 

French amendment proposed. 

President objects to it. 

Veniselos proposes a compromise which Larnaude rejects and 
then offers to take with addition. The idea of the French is some 
idea of inspection and control. 

Veniselos offered to put in “under the Executive Council.” 

President again objects. 

Cecil objects. 

Bourgeois talks. 

Article vi1r is adopted. 

French reserve right to propose an amendment adding a Com- 
mission. 


The discussion of the Bourgeois amendment is more fully re- 
ported in the French minutes than elsewhere. It is to be regretted 
that Wilson’s remarks about a super-state are not fully available 
in his own language; but it is worth while, I think, to insert the 
following version from the French minutes : 


Le Président craint que les visites d’une Commission ana- 
logue a celle qui est prévue dans l’amendment francais pour 
examiner si les Nations tiennent ou non leurs engagements, ne 
soient mal vues dans beaucoup de pays. Pareil procédé ne peut 
étre comparé a ce qui aurait lieu a l’intérieur d’un Etat. Si nous 
avions a faire a une Union d’Etats avec une législature commune, 
nous pourrions envisager un tel mécanisme; mais, notre idée con- 
stante a été d’écarter la conception du Super-Etat et, dans ces 
conditions, il parait difficile d’opérer certaines constatations a l’in- 
térieur des Nations associées. 


The French amendment was of course not accepted ; but Bour- 
geois insisted on it and reserved the right to submit it again both 
to the Commission and to the Plenary Session. 

Both my notes and my Diary say that Cecil spoke against the 
French amendment although neither the English nor the French 
minutes quote him at all. My Diary says that he spoke very earn- 
estly against it, remarking on its uselessness and the danger to the 


ELEVENTH MEETING OF THE COMMISSION 321 


success of the Covenant which it would create by making feeling 
in the United States. After the meeting Cecil told me that he 
thought he had been very badly treated by the French by their in- 
sistence on this amendment because Clemenceau had told him that 
they cared nothing about it. 

The proceedings at this meeting are a good illustration of the 
fact that the text of the Covenant was being passed on in Eng- 
lish. The amendments accepted were all changes in the English 
text although one of them, that of M. Larnaude to Article 1, was 
proposed in French and related primarily to the French text. The 
Japanese amendment to Article 8 was on the table in both English 
and French;? but it was discussed in English. The French 
amendment to Article 8 was proposed in French only; but as it 
was not accepted no English text of it was made at this time. 
Curiously enough, the French minutes do not show the text of 
the amendments proposed to Article 7 which were sent to the 
Drafting Committee, these amendments, that of Cecil (the text 
of March 18) and that of Wilson, which was written by me, 
having been put forward in English; indeed the latter is not men- 
tioned in the French minutes at all. It may also be noted as illus- 
trating this point that various Belgian amendments which were 
on the table and which will be found in the Annex to the French 
minutes of the Twelfth Meeting were to a considerable extent in- 
tended merely as improvements of the French translation of Feb- 
ruary 14, so as to make it more in accord with the sense of the 
English. 


*Indeed, as submitted in French, it did not read as the French minutes 
state, but thus: 

Insérer aprés la phrase “Le conseil exécutif est chargé d’etablir le plan 

de cette réduction”: lequel sera soumis a une révision tous les dix ans. 


CHAPTER XXVI 
TWELFTH MEETING OF THE COMMISSION 


Tue Twelfth Meeting of the Commission was held on the 
evening of Monday, March 24. In the interval, French and Eng- 
lish texts of the Preamble and of the first eight Articles as agreed 
to by the Commission were printed; and I also had an opportunity 
to examine with some care the highly critical speech 1 of Senator 
Knox of March 1. 

Early in the afternoon of March 24, Mr. Close, one of Mr. 
Wilson’s Secretaries, came to my office and handed me three 
amendments written on the President’s typewriter, which he said 
the President wanted ready for the evening meeting, in English 
and in French, all on one paper. The French text was prepared in 
my office? As Wilson wrote them, the amendments were as 
follows: 


Add to Article X the following paragraph: 

Nothing in this Covenant shall be deemed to deny or affect the 
right of any American State or states to protect the integrity of 
American territory and the independence of any American gov- 
ernment whose territory is threatened, whether a member of the 
League or not, or, in the interest of American peace, to object to 
or prevent the further transfer of American territory or sov- 
ereignty to any power outside the Western Hemisphere. 

Add to Article XV the following paragraph: 

If the difference between the parties shall be found by the 
Executive Council or by the Body of Delegates to be a question 
which by international law is solely within the domestic legislative 
jurisdiction of one of the parties, it shall so report, and shall make 
no recommendation as to its settlement. 

Add to Article XXIV the following paragraph: 

After the expiration of ten years from the ratification of the 
Treaty of Peace of which this Covenant forms a part any State 
a member of the League may, after giving one year’s notice of 
*See Congressional Record, 65th Congress, Third Session, v. 27, part 5, 

pp. 4687-4604. Among many extravagant statements the speech contained 
some minor suggestions of interest. 
* For this as to two of the amendments see the Annex to the French minutes 


of the Twelfth Meeting in Document 20. I do not reproduce the French of the 
Monroe Doctrine amendment, as it was never presented. 


322 


TWELFTH MEETING OF THE COMMISSION 323 


its intention, withdraw from the League, provided all its interna- 
tional obligations and all its obligations under this Covenant shall 
have been fulfilled at the time of its withdrawal. 


These amendments of Wilson covered the first three points of 
the Hitchock letter + and also followed Tait’s dispatch of March 
18 which I have quoted above,” from which indeed the language 
of the proposed additions to Articles 10 and 15 (the Monroe 
Doctrine and domestic questions) was largely taken. I did not 
like the form of either one of these and I told Colonel House dur- 
ing the afternoon that I still preferred my own draft ? which was 
intended to cover both matters. Still later I discussed the matter 
with House and Sir William Wiseman, who had a copy of Taft’s 
dispatch. Following these conversations, I revised my draft, 
making it broader than it had been before and again submitted it 
to House, as follows: 


Liberty of action in matters of domestic concern and of na- 
tional policy heretofore belonging to the States Members of the 
League, is recognized as continuing. 


Just before the meeting in the evening Colonel House told me 
to have the mimeographed copies of the President’s amendments 
cut up, so as to leave out the Monroe Doctrine amendment, and 
to have only the remaining parts of the sheets distributed. 

The Twelfth Meeting of the Commission on March 24 went 
through eight Articles of the text, 9 to 16 inclusive; but the pro- 
ceedings of this evening were not very definite or precise. Vari- 
ous amendments were adopted subject to their consideration by 
the Drafting Committee; others were simply referred to the 
Drafting Committee. Those who were following the proceedings 
in detail had very great difficulty when the meeting was over in 
saying. that there was any definite Commission text of certain 
Articles. The result was that the functions of the Drafting Com- 
mittee were automatically considerably enlarged; the attempt 
which had been made at the previous meeting to limit the work 
of the Drafting Committee to language and to exclude substance 
broke down. 

The importance of the clauses passed on justifies a rather de- 
tailed description of what took place. I shall refer to my notes 
as I go along and also to the English and the French minutes. 


*See p. 276 sq. 
>See p. 277. 
* See p. 298. 


324 THE DRAFTING OF THE COVENANT 


After deciding to grant the request of the International Coun- 
cil of Women for a hearing,’ the Twelfth Meeting opened with a 
rather long renewed discussion of the French amendment for an 
International General Staff. 

It will be convenient to insert the text of the French proposal 
here : 


Un organisme permanent sera constitué pour prévoir et pré- 
parer les moyens militaires et navals d’exécution des obligations 
que la présente Convention impose aux H. P. C. et pour en assurer 
l’efficacité immédiate dans tous les cas d’urgence. 


During the speech of Bourgecis which is given at some length 
in both the French and English minutes, I wrote the following 
comment to Mr. Wilson: 


Regardless of the statements of the speech, the amendment 
which is on the table in French, provides for an International 
General Staff all but the name; 


and later on I wrote him this: 


The French amendment is with the idea, which is in the lan- 
guage, that the Commission shall prepare and make effective the 
means etc. within the States. It is not a question of draft but 
of idea. 


The minutes show that Wilson was conciliatory in his re- 
marks; my notes put it “Wilson argues that the present text is 
broader than the amendment or more elastic’; but unless the 
French proposal was withdrawn, the discussion could get to no 
result as the British and the Americans were opposed to the idea 
in any form of words. The February 14 text of Article 9, to 
which the discussion related, was as Cecil remarked, itself a 
compromise between the original text and the French amendment, 
so that it could hardly be changed further. Slight changes sug- 
gested by Kramar were accepted,” substituting “Executive Coun- 
cil” for “League” and adding a reference to Article 7 (now 1) so 
that the Article read : 


A permanent Commission shall be constituted to advise the 
Executive Council on the execution of the provisions of Articles 
vil and vii and on military and naval questions generally. 


* As to this my notes say: “Letter of Saturday from Lady Aberdeen, re- 
questing permission to attend by a Committee of Women—¥% hour to 1 hour 
at the end.” 

*The French minutes do not mention this fact. 


vy 


TWELFTH MEETING OF THE COMMISSION 325 


The French, however, maintained their position, leaving the 
whole matter substantially where it was before. 

When Article 10 was reached Wilson said he would propose 
an amendment later on, referring of course to a Monroe Doctrine 
clause. 

The change of March 18 in Article 11 was adopted ;? and an 
amendment ? proposed by Larnaude with the idea of permitting 
an immediate session of the Council in cases of urgency * was ac- 
cepted in principle * and sent to the Drafting Committee; it read 
thus: 


En outre, en cas d’incident de nature a mettre en péril le 
maintien de la paix le Secrétaire général devra, sur la demande 
de l'un des Gouvernements associés, convoquer d’urgence le Con- 
seil exécutif. 


Quite a number of changes were proposed to the provisions 
regarding arbitration and the court, Articles 12 to 14. The min- 
utes here are somewhat confused. 

The language of Article 12 of the Covenant of February 14 
was generally regarded as very unsatisfactory both in the Eng- 
lish and in the French texts of the Article; and this one of the 
Articles which was not changed at the Wilson-Cecil meeting of 
March 18. 

The difficulty was in the first paragraph ° of the Article which 
read thus : 


The States Members of the League agree that should disputes 
arise between them which cannot be adjusted by the ordinary 
process of diplomacy, they will in no case resort to war without 
previously submitting the questions and matters involved either 
to arbitration or to inquiry by the Executive Council and until 
three months after the award by the arbitrators or a recommenda- 
tion by the Executive Council; and that they will not even then 
resort to war as against a member of the League which complies 
with the award of the arbitrators or the recommendation of the 
Executive Council. 


» For the text of this see the English minutes, also Document 24. 
* Originally proposed as an amendment to Article 3 
* Such a provision was in various earlier Drafts, e. z " Article 7 of the House 
Draft (Document 2). 

* Note that the French minutes say simply it was “adopted.” My notes read 
“French amendment to Article 11 adopted subject to revision by Committee of 
Redaction, as an addition to x1.” 

* Two paragraphs in the French. 


326 THE DRAFTING OF THE COVENANT 


Here there is first a covenant for delay, that is, a covenant 
against war during arbitration or inquiry and for three months 
thereafter. This is the principle of the Bryan Treaties.1 Then 
follows an absolute covenant against war when there is compli- 
ance with an arbitral award and an absolute covenant against 
war when there is compliance with a Council recommendation. 

Thus there are two principles here; the principle of delay dur- 
ing which adjustment is possible; and the principle of the sacred- 
ness of an arbitral award or its near equivalent, the Council recom- 
mendation. While the two principles have some common ground, 
they do not go well together in statement for they seem, when 
read together, to emphasize the possibility of war in a case not 
within the covenant for delay, such as after the three months 
moratorium. 

The drafting finally adopted, which leaves the moratorium 
covenant in Article 12, puts the covenant against war in the case 
of arbitration in Article 13, which refers to that subject, and 
puts the covenant against war in the event of a unanimous recom- 
mendation by the Council in Article 15, which deals with such 
recommendations, made, I think, no change in legal substance, 
but certainly is a very real improvement in form. 

Both Larnaude and Cecil made proposals ? to recast the phra- 
seology and both these proposals were sent to the Drafting Com- 
mittee (as stated in the English minutes and my notes) although 
the French minutes say that Larnaude’s amendment was with- 
drawn and, except in the Annex, make no mention at all of Cecil’s 
amendment. The text of the Cecil amendment is incorporated 
in the English minutes ; it proposed to strike out all after the semi- 
colon and insert “as hereinafter provided”; and the correct text 
of the Larnaude amendment is in the Annex to the French min- 
utes ; its two paragraphs were as follows: 


Les Hautes Parties Contractantes conviennent que s'il venait 
a s’élever entre elles des différends qui n’auraient pu se régler 
par les procédés ordinaires de la diplomatie, elles devront sou- 
mettre les éléments du différend a une enquéte confiée au Conseil 
exécutif ou a un arbitrage. 

Elles ne devront jamais recourir a la guerre contre tout membre 
de la Société qui se conformera a la recommandation du Conseil 
exécutif. 


*See Treaties for the Advancement of Peace, Scott, Oxford University 
Press (1919). 

2 See also the Belgian suggestions in the Annex to the French minutes of the 
Twelfth Meeting in Document 20. 


TWELFTH MEETING OF THE COMMISSION 327 


A Japanese amendment to Article 12, a very important pro- 
posal providing for a suspension of military preparations while 
a dispute is under examination by the Council or arbi- 
tration and for three months thereafter, was accepted as a sepa- 
rate Article (12a) and sent to the Drafting Committee. I may 
mention here that this proposal was subsequently omitted from 
the Covenant. As proposed, it read thus: 


To insert at the end of the 1st clause of the Article the follow- 
ing words: 

From the time a dispute is submitted to arbitration or to in- 
quiry by the Executive Council, and until the lapse of the aforesaid 
term of three months, the parties to the dispute shall refrain from 
making any military preparations. 


Ajouter a la fin du 2° alinéa: 

A partir du moment ow le différend a été soumis au Conseil 
exécutif ou a un arbitrage, et jusqu’a l’expiration dudit délai de 
trois mois, les parties litigantes ne pourront procéder a des pré- 
paratifs militaires d’aucune espece. 


To Article 13 Cecil proposed an amendment defining justici- 
able disputes in familiar language,’ now substantially incorporated 
in the Covenant ; by this amendment the first sentence of the Art- 
icle was to read: 


If a dispute should arise between the States members of the 
League, as to the interpretation of a treaty, as to any question of 
international law, as to the existence of any fact which if estab- 
lished would constitute a breach of any international obligation, or 
as to the extent and nature of the reparation to be made for any 
such breach, if such dispute cannot be satisfactorily settled by 
diplomacy, the States members of the League recognize arbitra- 
tion to be the most effective and at the same time the most equitable 
means of settling the dispute; and they agree to submit to arbitra- 
tion any dispute which they recognize to be of this nature. 


The English minutes state that this Cecil amendment was 
referred to the Drafting Committee, following Wilson’s sug- 
gestion that its text ‘‘should be revised so as to make clear that the 
cases enumerated therein were only mentioned as examples, and 
that the States members of the League might have recourse to 


* The definition was first formulated by the Bryce Group. See Schemes for 
Maintaining General Peace, by Lord Phillimore, Peace Handbooks, London, 
1920, Vol. xxv, No. 160, at pp. 28, 29. See also the Phillimore Plan, Article 
3 (Document 1). 


328 THE DRAFTING OF THE COVENANT 


arbitration in many other cases not expressly defined.” The 
French minutes show that this was the sense of the meeting, — 
although they add that the amendment was withdrawn. 

Such differences in the minutes are an indication of the lack 
of precision or formality in the proceedings of the Commission, 
particularly in respect of matters not very contentious. The decis- 
ion made at the previous meeting to appoint a Drafting Committee 
had made less important any definite action of the Commission 
regarding proposals to which no objection was pressed. My 
notes on this Article, while not complete or very clear, indicate 
that Wilson’s suggestion was in the form of the following remark 
to Larnaude: “and such other questions of whatever kind as are 
deemed suitable for arbitration.” They also mention that a French 
amendment was “not pressed.” ‘There is no other record of any 
French proposal at this point; it was perhaps a conversational 
suggestion of Larnaude. 

Hymans also proposed a verbal modification of Article 13; 
it would have changed the French text in its first sentence by 
striking out ‘‘a leur commune estimation” after ‘‘susceptible” 
and inserting a reference to arbitration treaties, so as to make the 
sentence read: 


Les Hautes Parties Contractantes conviennent que toutes les 
fois qu’il s’élévera entre elles un différend susceptible d’aprés les 
conventions existant entre elles ou leur commun agrément, de 
solution arbitrale, aprés avoir sans succes tenté de le régler par la 
voie diplomatique, elles soumettront dans sa totalité la question 
a l’arbitrage. 


The English minutes say that this Belgian proposal was re- 
ferred to the Drafting Committee and that Committee so regarded 
it; the French minutes say that it was withdrawn. 

To Article 14, the Court Article, Cecil proposed an amend- 
ment to insert the following italicized words as to the jurisdiction : 


The Executive Council shall formulate plans for the establish- 
ment of a Permanent Court of International Justice and this 
Court shall, when established, be competent to hear and deter- 
mine any dispute or difference of an international character in- 
cluding any matter which the parties recognize as suitable for 
submission to it for arbitration under the foregoing Article. 


This was pretty sweeping language. I wrote this about it at 
the meeting: 


TWELFTH MEETING OF THE COMMISSION 329 


I meant that the amendment of Lord Robert Cecil has in- 
cluded all questions of an international character. That is an 
enormous addition to the jurisdiction and is going the whole toad 
to compulsory arbitration. 


My notes say the amendment was not pressed; the French 
minutes make no mention of it except in the Annex; the English 
minutes say it was adopted. It was treated as adopted, but like all 
amendments, subject to the later review of the Drafting Com- 
mittee. 

Larnaude made a very interesting suggestion regarding the 
jurisdiction of the Permanent Court of International Justice; his 
proposal in full read as follows: 


Le Conseil exécutif arrétera le plan de création d’une Cour 
permanente de justice internationale; cette Cour, dés son appara- 
tion, aura compétence pour entendre et juger: 


a. Toute question qui lui serait soumise par le Corps des 
Délégués ou par le Conseil exécutif. 

b. Toute question surgissant de l’interprétation du Pacte 
établissant la Ligue. 

c. Tout différend que, avec l’assentiment de la Cour et du 
Conseil exécutif, l’une quelconque des parties désirerait lui 
voir soumettre. 


Paragraph (a) of this proposal was quite similar to the 
words added to Article 14 by Wilson and Cecil on March 18: 
“and also any issue referred to it by the Executive Council or 
Body of Delegates”. Paragraph (b), as Larnaude stated, was 
written with the idea of giving the Permanent Court the same 
sort of jurisdiction over the interpretation of the Covenant as 
our Supreme Court has regarding the Constitution of the United 
States. I may mention here that the extent of the jurisdiction of 
the Permanent Court in this regard is still somewhat debatable.’ 
Paragraph (c) went a long way on the road to compulsory arbi- 
tration; but indeed this seemed to me the effect also of paragraph 
(a) and of the corresponding change of March 18 above men- 
tioned. 

Now what happened to this amendment of Larnaude is fairly 
well stated in the English minutes. It was adopted in principle, 


* However, there is no doubt that in a proper case the interpretation of any 
Treaty, including the Covenant, might come before the Court. Indeed, in the 
Mosul case, Advisory Opinion No. 12, the Court considered the meaning of 
various clauses of the Covenant. 


330 THE DRAFTING OF THE COVENANT 


omitting paragraph (b) and altering paragraph (c) so as to re- 
fer to both parties and not merely to one party, and sent to the 
Drafting Committee along with the Wilson-Cecil addition of 
March 18 above mentioned. My notes indicate that only (a) and 
not (c) of the Larnaude amendment was so adopted; but with 
paragraph (c) changed so as to mention both parties, that para- 
graph was in substance already in the Article. On the other hand 
the French minutes say that the Larnaude amendment was with- 
drawn and do not record any action on the Wilson-Cecil addition, 
although the Annex to the French minutes contains a translation 
of the amendment which renders the English “issue” by the 
French ‘‘conclusion.” 

Finally, a Belgian proposal 1 of a new Article for the creation 
of special tribunals to construe Arbitration Conventions was with- 
drawn. 

As to Article 15, I can only say that the English minutes are 
generally correct and the French minutes, in so far as they do 
not agree with the English, are generally faulty or erroneous. A 
British drafting amendment ? was apparently adopted although 
my records do not show it; the change of March 18 which I dis- 
cuss below was adopted; two amendments regarding the proced- 
ure before the Assembly in the case of a dispute referred to that 
body were sent to the Drafting Committee. * One of these, pre- 
sented by the French, and was to add as a paragraph: 


Le recours a l’Assemblée des Délégués sera de droit lorsque 
le Conseil exécutif n’aura pu prendre de décision. 


The other was presented by Cecil on behalf of Veniselos who 
was not present. It would have made the last sentence of the 
Article read thus: 


In this case, a recommendation made by the Body of Dele- 
gates, shall have the force of a unanimous recommendation by 
the Executive Council, provided that such recommendation is 
supported by all the States represented in the Executive Council 
and a majority of the other States represented in the Body of 
Delegates. 


1 For the text of this, see the Annex to either set of minutes of the Twelfth 
Meeting. y 

* See the English minutes for this. It changed the word “either” to “any.” 

* Neither in the French minutes nor in my notes is there any mention of 
action on the French amendment. 


TWELFTH MEETING OF THE COMMISSION 331 


This Greek amendment was also proposed in French; in the 
Annex to the French minutes, however, the correct French text 
is not given, but will be found in a footnote thereto. 

It was Wilson who proposed the change of March 18 in the 
second paragraph of Article 15. I have described this at some 
length above? and need not repeat what was then said. While 
the words which were striken out had previously been the subject 
of much consideration,” they were now omitted without debate. 
Indeed the French minutes make no mention of the change. 

Wilson’s amendment regarding domestic questions was also 
accepted and sent to the Drafting Committee with no dissent 
and little comment. 

I may recall here that Taft’s suggestion about this amend- 
ment was this: 


Add to Article 15 a provision that where the Executive Coun- 
cil or the Body of Delegates finds the difference to grow out of 
an exclusively domestic policy, it shall recommend no settle- 
ment. 


As Wilson wrote out his proposal it read thus: 


Add to Article 15 the following paragraph: 

If the difference between the parties shall be found by the 
Executive Council or by the Body of Delegates to be a question 
which by international law is solely within the domestic legisla- 
tive jurisdiction of one of the parties, it shall so report, and 
shall make no recommendation as to its settlement. 


Just why he inserted the word “legislative” before “jurisdic- 
tion”, I cannot imagine; at any rate the Commission struck it out. 

Here Koo made a very interesting suggestion. He proposed 
to add to this amendment the following words: ? 


Unless a recommendation is desired by the party within whose 
exclusive jurisdiction the question lies. 


When Koo first put forward this suggestion I do not think 
its purpose was quite understood. In one of the notes that I was 


*See p. 200 sqq. 

*See the minutes of the Fifth Meeting relating to Article 13, as then 
numbered. 

*I take them in this form from my notes. Mr. Wilson also noted the 
amendment at the time and I still have the paper which he wrote. The text in 
the English minutes varies slightly; and the French minutes are very obscure 
at this point. 


332 THE DRAFTING OF THE COVENANT 


accustomed to write to Wilson during the meetings I explained 
Koo’s remarks thus: 


What Koo means is this: A Party may claim that its domestic 
jurisdiction is interfered with and it wants to put the other Party 
out of its domestic affairs. 


The clause was referred to the Drafting Committee, which ac- 
cepted its principle. It expressed a very natural Chinese reaction. 
Sentiment in the United States feared that in some vague way 
under the Covenant there might be some interference with mat- 
ters American from the outside. The Chinese were thinking 
more of past interference with Chinese internal affairs by other 
Powers and wanted to be sure that there was nothing in the Cove- 
nant that would form a pretext for the continuance of this inter- 
ference whenever a favorable opportunity arose for diminishing it. 

It should also be mentioned that the British had their own 
amendment regarding domestic questions, which was on their 
amendment paper of March 24, but was not brought forward at 
the meeting, since the adoption of the Wilson proposal in Article 
I5 covered somewhat the same ground. This British amend- 
ment was to add an additional Article reading as follows: 


Nothing in this Covenant shall be deemed to limit the sover- 
eignty of the States members of the League or their right to de- 
cide their own domestic policy, except as herein expressly stated. 


A Belgian proposal was put forward to give express approval 
to special agreements between particular States with the object 
of excluding all possibility of war between them. The text of 
this in the Annex to the English minutes is incomplete, but the 
correct text is in the Annex to the French minutes as follows: 


Il sera loisible aux Etats de conclure des conventions particu- 
liéres destinées a exclure toute possibilité de guerre entre eux, soit 
quils s’engagent a accepter les décisions rendues a simple majorité 
par le Conseil exécutif, soit qu’ils conviennent d’un autre mode de 
réglement de leurs conflits. Pareils engagements séront si les 
Parties contractantes le désirent, admises sous la sauvegarde de 
la Société des Nations. 


This proposal was withdrawn upon Wilson’s statement that 
such special agreements were authorized by the Covenant, which | 


*See in Document 30 the opening words of the seventh paragraph of Article 
15, now the eighth paragraph of that Article. { 


TWELFTH MEETING OF THE COMMISSION 333 


is, I think, the correct view, despite the doubts on the point ex- 
pressed by Orlando. Indeed, Hymans’ proposal in principle en- 
visaged just such arbitration treaties as some of recent date 
and also agreements like those of Locarno. 

Finally, Cecil proposed in this connection an additional Article 
for Commissions of Conciliation, the text of which was as 
follows: 


The Executive council may formulate plans for the estab- 
lishment of a system of commissions of conciliation and may 
make recommendations as to the method of employing such com- 
missions in the settlement of such disputes as are not recognized 
by the parties as suitable for arbitration. 


Wilson thought that the Council already had power to name 
such Commissions, so the amendment was not pressed. It was in 
accord with proposals of various Neutral Powers,? and while 
Wilson’s view was doubtless correct, an express recognition of 
the procedure of conciliation would probably have been wise 
and at least would have done no harm. 

Article 16, the sanctions Article, was one which the Wilson- 
Cecil agreement of March 18 had left unchanged from the Feb- 
ruary 14 text. As it read, the sanctions were applicable, only to 
a breach of Article 12. The French proposed to mention also 
Articles 8, 13 and 15; the British proposed to include the mention 
of Article 15 and to this extent only the change was accepted ” 
as were also two drafting amendments of the British.? 

The point as to the applicability of the sanctions in the form 
in which it was presented seems both trivial and technical. It 
was, however, of real importance. As the Covenant stood, the 
sanctions applied only to the breach of an obligation not to re- 
sort to war, for Article 12 as then drawn included no other obli- 
gation. The French proposal to include a reference to Article 13 
would have made the sanctions applicable to enforce an arbitral 
award or a judgment of the Permanent Court of International Jus- 
tice. Such a proposal was one of very far-reaching importance 
and much too drastic and novel to be accepted. The award or the 
judgment might be for a sum of money, for example, and to say 

*See Document 25. 

* See the minutes on this point, especially as to the mention of Article 8. 

* One of these was in the second paragraph, to insert after the word “recom- 
mend” the words “to the several Governments concerned”; and, in the third 


paragraph, instead of saying “will afford passage” etc. to say “will take the 
necessary steps to afford passage” etc. 


334 THE DRAFTING OF THE COVENANT 


that default in payment would automatically involve such grave 
consequences as those of the application of Article 16 would be 
impossible. The analogy of a Municipal Court with its sheriff or 
similar officer could not be carried to any such length. Even the © 
inclusion of Article 15 went, as a matter of drafting, too far, for, 
while that Article itself did (and does) include a covenant not to 
go to war in certain cases, it also, as now, included other cove- — 
nants. As finally written, Articles 12, 13 and 15 all include 
covenants not to resort to war; and Article 16 mentions all three 
of them but with qualifying language, making the reference 
only to a “resort to war” in breach of the Articles named, and not 
to the Articles generally. 

At this point the Commission adjourned for two days until 
the evening of March 26. Since so many amendments to the 
Articles considered had been referred to the Drafting Committee 
without distinct action on the part of the Commission except 
general approval, it was decided that the usual print of the text 
as adopted to date should not be distributed at the next meeting 
of the Commission. Such a text was printed in both English and 
French during the interval between the meetings; but it was 
thought that it would be misleading to circulate it in the absence 
of a detailed explanation of the status of the various changes pro- 
posed, with their language. 

The Swiss were beginning to think that Geneva would be 
chosen as the Seat of the League and on March 25 MM. Rappard 
and Huber handed me a clause which they proposed on this sub- 
ject which read as follows in the two languages; 


Les clauses concernant le siége de la Société des Nations sont 
provisoires. Elles devront faire l’objet, d’une convention entre le 
Conseil Exécutif de la Société et le Gouvernement de l’Etat men- 
tionné a l’article v. 

Cette convention fixera les conditions relatives 4 la protection 
du siége de la Société. Cette protection pourrait étre assurée par 
le bénéfice de l’exterritorialité du siége et par la reconnaissance de 
la neutralité permanente (de l’inviolibilité) de l’état ot le siége 
est situé, ou autrement. 


The provisions concerning the Seat of the League are pro- 
visional and subject to agreement between the Executive Council 
of the League and the Government of the Country named in 
Article v. 

In this agreement provision shall be made for the protection 
of the Seat by the establishment of the extraterritoriality of the 


TWELFTH MEETING OF THE COMMISSION 335 


Seat and the permanent neutrality (inviolability) of the country 
where the Seat is located or otherwise. 


My comment on this was that I preferred the French text to 
English and suggested certain changes.? 

The Swiss Delegates had also drawn up a very curious pro- 
posal regarding immigration. While naturally any such sug- 
gestion was utterly impossible from the American standpoint 
and while nothing came of it, it is interesting as showing the view 
of a small country in which the percentage of foreign population 
is normally very large indeed. Accordingly I reproduce it here, 
remarking that while our own Immigration Law bases its immi- 
grant quotas on percentages of population, these are prior domes- 
tic percentages, in contrast with the Swiss idea of existing and, 
so to speak, reciprocal foreign percentages :? 


Pour assurer l’égalité de traitement entre les Etats membres de 
la Société des Nations en matiére d’immigration et d’établissement 
il est disposé ce qui suit: 

Aucun Etat n’est tenu a recevoir sur son territoire des citoyens 
et sujets d’un autre Etat dans une proportion (pourcentage) plus 
forte, par rapport a sa population, que ses propres resortissants 
représentent dans la population de cet autre Etat. 


In order to secure equality of treatment in matters of immi- 
gration and establishment between States members of the League 
of Nations, the following rule will be applied: 

No State is obliged to receive on its territory citizens or sub- 
jects of another State in a higher percentage, with regard to its 
population, than its own nationals represent in the population of 
the other States. 


* These were to make the last sentence of the French read thus: 

Cette protection pourrait étre assurée par la reconnaissance de la 
permanente inviolabilité de Etat ott le siége est situé, en tenant compte 
des dispositions de l’Article xvi en y apportant des modifications qui 
seraient jugées utiles. 


* The Swiss gave this example, to show how their idea would work: 


Inhabitants Nationals of % 
State A 20,000,000 State B 
20,000 .O1 
Nationals of 
State A 
State B 10,000,000 20,000 .02 


State B may prohibit (is not obliged to do so) an increase of im- 
migrants from State A beyond .01% (10,000). 


CHAPTER XXVII 
THIRTEENTH MEETING OF THE COMMISSION 


Discussions of a Monroe Doctrine clause continued. On 
March 25 Sir William Wiseman came to my office and showed 
me a draft which read as follows: 


Nothing in this Covenant shall be deemed to impair the 
validity of any international engagement or understanding for 
securing the peace of the world such as treaties of arbitration and 
the Monroe Doctrine. 


Wiseman said that Mr. Balfour had approved of this draft 
and asked me my opinion. I told him I thought it was a very good 
thing to mention the Monroe Doctrine specifically and I sug- 
gested some changes in the draft so that it read thus: 


Nothing in this Covenant shall be deemed to affect any inter- 
national engagement or understanding for securing the peace of 
the world such as the Monroe Doctrine. 


The next day Mr. Wellington Koo came to see me. He men- 
tioned first the question of immigration and asked if the Jap- 
anese were going to bring it up again. I said that I did not know. 
Koo said that the Chinese of course would have to support the 
proposal if it came up; but that in reality they did not care any- 
thing about it in view of the more important interests of theirs 
which were in question. Koo then asked me about the Monroe 
Doctrine and said he was in favor of having a recognition of it 
in the Covenant, but thought that the language should not be so 
broad so as to include other agreements such as the so-called Jap- 
anese Monroe Doctrine. Doubtless he was thinking somewhat of 
the Lansing-Ishii agreement. I showed Koo two of the drafts 
that had been suggested 1 and while he was with me I wrote out 
still another which Koo liked and which I think was undoubtedly 
the best form of all up to date from the American standpoint. 
It read thus: 


* The one last quoted and an earlier draft quoted at p. 323. 
336 


THIRTEENTH MEETING OF THE COMMISSION B37, 


Nothing in this Covenant shall be deemed to affect the Mon- 
roe Doctrine, which is recognized as having in view the peace of 
the world. 


When I told House about this conversation a little later, he 
said to let Cecil know about it and see if he would agree. Accord- 
ingly, I went over to the Hotel Astoria and saw Cecil and he said 
that in the first place he did not like my draft as he thought it 
would be impossible simply to single out the Monroe Doctrine and 
nothing else and, while he saw no objection to mentioning it, he 
thought it should be by way of reference. He said, however, 
that the whole question was in a sense out of his hands; that he 
had spoken to Mr. Balfour about it, and that Balfour had thought 
that he should speak to Lloyd George, which he had done, and 
Lloyd George raised two objections to including any mention of 
the Monroe Doctrine; first, it would be very hard to explain in 
Great Britain, where the people would say that so far as America 
was concerned this was an element embodying concession; and 
second, he gave the original objection made by the President that 
a Doctrine specifically applicable to only one part of the world 
should not be contained in the Covenant.t Accordingly, Cecil 
suggested that the only thing that could be done was for Lloyd 
George to speak to the President on the subject. 

I was unable to report this conversation to Colonel House be- 
fore the evening meeting as he was resting; but I left a message 
for him about it at his office. There was of course nothing real 
in the objections raised by Lloyd George. He cared nothing what- 
ever about the recognition of the Monroe Doctrine; but he was 
trying to bargain about it so as to get an agreement with Wilson 
on the subject of naval building.” 

The minutes of the American Commissioners of March 27 
contain a reference to this matter and also to the proposed 
Treaty of Guarantee for France. The following extracts 
which I print are of interest for various reasons. Colonel House 
was not present, so Mr. White recounted to Mr. Lansing and 
General Bliss the information which Colonel House had imparted 
to him: 


Mr. White stated that he had just had a conference with 
Colonel House, and that he later had given him certain bits of 
information with regard to the President and the President’s atti- 


*As to this, Quere? 
*?See Chapter xxx. 


338 THE DRAFTING OF THE COVENANT | 


tude upon certain current questions. The President had been un- 
able to have the proposed amendment with regard to Article 10 of 
the Covenant of the League of Nations passed which safe- 
guarded the Monroe Doctrine because Lloyd George was opposed 
to it. Lloyd George felt that the insertion of such an Article 
would be giving to the United States a special prerogative, and ~ 
would likewise localize the League of Nations. Moreover, Lloyd © 
George had not yet been able to reach a satisfactory agreement 
with the President in regard to the ship-building program of the 
two countries, and that was undoubtedly his fundamental objection 
to making a concession to the United States. Colonel House had 
observed that in view of the fact that Lord Robert Cecil and Mr. 
Balfour were both willing to pass the amendment in question, the 
President had decided to see Mr. Lloyd George personally in the 
hope of getting him finally to consent to it. 

Mr. White observed that through Colonel House he had 
learned that the President appeared to be in favor of giving to 
France the guarantee which she desired through a triple alliance. 
England was resolved to give this guarantee whether the United 
States did or not. Mr. White said that he told Colonel House 
that in the opinion of the other three Commissioners such an alli- 
ance would be extremely unfortunate, and absolutely fatal to the 
success of the League of Nations. Colonel House had replied that 
he would bring this view to the attention of the President. 


So the Monroe Doctrine clause went over for further nego- 
tiations. It was not mentioned at the Thirteenth Meeting of the 
Commission, on March 26, which got through with the text and 
sent it to the Drafting Committee, consisting of Cecil, Larnaude, 
Veniselos and House. Another Committee was appointed to con- 
sider the location of the Seat of the League; this consisted of Or- 
lando, Smuts, Makino and House. 

The Thirteenth Meeting of the Commission did not, as to 
most of the Articles considered, do very much except approve 
most of the changes which had been agreed upon between Wilson 
and Cecil on March 18 ! but some additions were made. However, 
as any one seeking to trace the proceedings in detail would find 
great difficulty in following them from the minutes, I summarize 
the results here :? 


Article 17 was adopted with the slight changes agreed to on 
March 18. 


In Article 18, as numbered in the new draft (formerly 19), 
*For these see Document 24. 


ae own notes are not reproduced as they contain nothing not elsewhere 
stated. 


THIRTEENTH MEETING OF THE COMMISSION 339 


the mandates Article, Cecil proposed two changes. In lieu 
of the added paragraph of March 18 regarding the accep- 
tance of a Mandate, the words “‘and who are willing to accept it” 
were inserted in the second paragraph. The other proposal which 
was sent to the Drafting Committee was to recast the eighth 
paragraph of the Article so that it should read: 


The nature of the mandate to be given to the mandatory State 


in each case may, if not previously agreed upon, be settled by the 
Executive Council. 


The new Article 19 (18, 20 and 21 in the February 14 draft) 
was proposed by the British + in an expanded form as follows: 


In accordance with the provisions of international conventions 
hereafter to be agreed upon for the purposes hereinafter stated, the 
States Members of the League 


(a) will endeavour to secure and maintain fair and humane 
conditions of labour for men, women and children both 
in their own countries and in all countries to which their 
commercial and industrial relations extend. 

(b) engage to secure just treatment of the native inhabitants 
of the territories under their control. 

(c) entrust the League with the general supervision over the 
execution of such agreements as shall have been jointly 
come to with regard to the traffic in women and children 
and traffic in opium and other dangerous drugs. 

(d) agree that the League shall be entrusted with the general 
supervision of the trade in arms and ammunition with the 
countries in which the control of this traffic is necessary in 
the common interest. 

(e) agree that provision shall be made to secure and maintain 
freedom of communications and transit and equitable 
treatment for the commerce of all States members of the 
League, having in mind, among other things, special ar- 
rangements with regard to the necessities of the regions 
devastated during the war of 1914-1918. 


While this embodied, with a few very slight changes, the pro- 
visions of that Article as Wilson and Cecil had agreed upon it on 


+Various British proposals were on the table in their amendment paper. 
They are set forth in the text passim. A French version was also circulated by 
‘the British; I reprint it as Document 26, chiefly for the reason that a com- 
parison of the French therein with the French of the same amendments as 
given in the Annex to the French minutes of the Twelfth Meeting will show 
beyond debate that the language in which the amendments were really 
proposed was English. 


340 THE DRAFTING OF THE COVENANT 


March 18, the clauses regarding just treatment of native inhabi- 
tants and the supervision of Treaties regarding the White Slave 
Traffic and the Drug Traffic were added. This proposal was ac- 
cepted; but the Drafting Committee was instructed to take into 
consideration the question as to whether the International Bureau 
of Labor should be mentioned + or not in clause (a). My notes 
also say this regarding this Article: 


The Drafting Committee must be careful to see that Treaties 
mentioned are not to include any but the parties to them. 


What was meant was that the language should be so drawn 
that it would not be open to the construction that Treaties on the 
questions mentioned in the Article bound any but the ratifying 
parties. 

In an early draft of the English minutes, the account of the 
discussion of this Article is somewhat fuller than as finally writ- 
ten, so I insert it here: 


Lord Robert Cecil explained that as the Draft originally read, 
Articles XvIII, Xx and xxI were rather bare, and that they would 
be better as reprinted in the new Article xIx. 

M. Vesnitch asked what was the meaning of the words in 
paragraph (a) “and in all countries to which their commercial and 
industrial relations extend.” He thought that this implied that 
States would have the right of interfering in the internal affairs of 
other States, and this was inadmissible. 

President Wilson explained that influence only on a friendly 
and legitimate scale, and not intervention, was meant. 

M. Reis said that he thought that the words “general super- 
vision” in paragraph (d) were too strong. 

Lord Robert Cecil explained that the supervision was to depend 
upon subsequent international agreements. 

He stated that it was Mr. Barnes’ view with regard to para- 
graph (a) that no details should be entered into as to the means by 
which the objects of the clause should be attained; it was for this 
reason that he proposed to conclude the paragraph at “extend.” 

President Wilson asked whether this was the general view of 
Labour and it was agreed that Lord Robert Cecil should find out, 
and that the matter should be referred to the Drafting Committee 
for further consideration. 

In reply to a question by Baron Makino, 

Lord Robert Cecil explained that agreements with regard to 
the White Slave and Opium traffics were already in operation. 


*See the text in Document 24. 


THIRTEENTH MEETING OF THE COMMISSION 341 


M. Hymans asked whether. negotiations were proceeding with 
regard to (c) and (d), 

Lord Robert Cecil thought that semi-official preparations were 
in process. 

Article xIx was accepted as amended except in the mat- 
ter of the insertion in paragraph (a) of the words “by means of an 
International Bureau” after “endeavour” which is to be the sub- 
ject of discussion by the Drafting Committee. 

Baron Makino asked what would be the position of States 
which failed to ratify any of these Conventions. 

President Wilson replied that their only obligation would be 
to see to it that subscribing States kept their obligations there- 
under. 


The British also proposed considerably to expand Article 20 
(formerly 22). With their amendments that Article would have 
read thus: 


The States Members of the League agree to place under the 
control of the League all international bureaux already established 
by general treaties if the parties to such treaties consent. Further- 
more, they agree that all such international bureaux or all commis- 
sions for the regulation of matters of international interest to be 
constituted in future shall be placed under the control of the 
League. 

In all matters of international interest which are regulated by 
general conventions but which are not placed under the control of 
special international bureaux or commissions, the secretariat of the 
League shall act as a central organization for the collection and 
distribution of information and for securing the effective observ- 
ance of such conventions * if the States thereto consent. 

The expenses of all such bureaux and commissions, including 
those provided for by this Covenant, may, with the consent of the 
Executive Council, be treated as part of the expenses of the per- 
manent Secretariat of the League. 


The first paragraph of this proposal was the draft of Febru- 
ary 14 with the italicized words inserted; the second and third 
paragraphs were new. With one change and one reservation, the 
Article as proposed was passed. The change was that the words 
at the end of the second paragraph “and for securing the effec- 


*So the English minutes read; but in the British amendment paper the 
word was “parties.” In the earlier draft of the English minutes, as in the 
French text of the British amendments (Document 26) the last five words do 
not appear. 


342 THE DRAFTING OF THE COVENANT 


tive observance of such conventions” etc. were stricken out, be- 
cause they gave entirely too much power to the Secretariat. The 
reserve was regarding the third paragraph. During the meeting I 
had written to Wilson about the British proposal that I thought 
the machinery went too far; and on his suggestion the Drafting 
Committee was to consider whether the language was not too 
inclusive. The idea is now in a modified form the third para- 
graph of Article 24 of the Covenant. 

Articles 21, 22 and 23 were accepted as in the March 18 Draft, 
the same as in the text of February 14, except for the numbering 
(then 23 to 25). 

A real discussion took place over Wilson’s Article regard- 
ing withdrawal. It came up in connection with Article 24 (for- 
merly 26) which provided for the amendment of the Covenant by 
three-fourths of the Members of the League, including all the 
Powers on the Council. Cecil proposed to change “three-fourths” 
to “a majority’ and Wilson then introduced his withdrawal 
amendment which I reprint here: 


After the expiration of ten years from the ratification of the 
Treaty of Peace of which this Covenant forms a part, any State a 
member of the League may, after giving one year’s notice of its in- 
tention, withdraw from the League, provided all its international 
obligations and all its obligations under this Covenant shall have 
been fulfilled at the time of its withdrawal. 


The French reaction to this proposal was not exactly what 
had been expected. While Larnaude objected to the clause, he ob- 
jected more to the fixing of a ten year period preliminary to any 
right of withdrawal than to the right of withdrawal itself; and 
Bourgeois was even willing to accept withdrawal on two years’ 
notice if the ten year period was eliminated. The difference in 
the point of view between the American legal mind here and 
the French legal mind is very striking. We would say that a 
clause binding the parties absolutely for ten years and then giving 
a right of withdrawal on notice was more stringent than a clause 
simply giving a right of withdrawal on notice. I venture to say 
that to the average English or American lawyer such a proposi- 
tion would seem to be beyond debate. The reasoning, however, is 
wrong, because it looks more at words than at the psychology 
of human beings. As the continental jurists pointed out, the 
fixing of a ten year period would be regarded by the world as a 
trial term at the end of which the League would presumably break 


THIRTEENTH MEETING OF THE COMMISSION 343 


up, or at least might break up; and Bourgeois said, regarding the 
draft which he suggested, which read thus: 


Nul Etat faisant partie de la Société des Nations n’a le droit de 
s’en retirer sans s’étre acquitté de ses obligations et sans un préavis 
de deux ans. 


and which according to our point of view would give an almost 
unqualified right of withdrawal on two years’ notice, that it con- 
secrated the principle of perpetuity and at the same time main- 
tained the right of withdrawal. I believe his observation to be 
fundamentally sound; events indeed have almost proved it. Under 
the existing provisions, withdrawal from the League is a very seri- 
ous matter, to be raised by a State for very special reasons only, 
peculiar to itself, and subject to discussion and reasoning and per- 
haps retraction of resignation.’ If there were a definite bind- 
ing period applicable to all States it might very well, as Orlando 
suggested, bring about a collective suggestion of more or less gen- 
eral withdrawal. Indeed, one of Orlando’s later phrases seems 
to me of very high rank among diplomatic bons mots: “L’impor- 
ant n’est pas tant d’étre libre que de se croire libre.””. His whole re- 
marks here, as the French minutes have them, are worth quoting: 


La liberté est essentielle dans toutes les manifestations hu- 
maines. Mais l’important n’est pas tant d’étre libre que de se 
croire libre. Si les Etats ont la conviction qu’il leur suffit de don- 
ner un préavis pour sortir de la Société, il est bien vraisemblable 
qu ils n’useront pas de cette faculté. Aucontraire, s’ils ont l’impres- 
sion quwils portent une chaine, il pourra se produire des ruptures 
brutales. Sans doute, comme le dit M. Larnaude, nous voulons 
fonder un nouveau droit, mais il faut pour cela plus qu’un traité 
et qu’une déclaration. Il faut créer des moeurs, des habitudes, une 
force intérieure qui soutiennent l’édifice que nous construisons. 
La fixation d’un délai de dix ou vingt ans parait contre-indiquée au 
point de vue psychologique : mieux vaut ne pas assigner un terme a 
la Société et admettre simplement la faculté réglementée de s’en 
retirer. 


The French minutes should be specially consulted, as they con- 
tain portions of the discussion much more fully than do the Eng- 
lish. Both versions, however, are supplemented somewhat by the 
earlier English draft from which the final English minutes were 
condensed. It is quite natural that the remarks originally made 


*The agitated debates regarding the entrance of Germany into the League, 
following Locarno, are in point here. 


344 THE DRAFTING OF THE COVENANT 


in English are more fully set out here than elsewhere. The 
relevant portion of this earlier draft here follows: 


Lord Robert Cecil proposed an amendment as follows: 

Line 2 delete “three-quarters” and substitute “a majority.” 

It had been represented to him from many quarters that the 
necessity of amendments being carried by a three-quarters majority 
would give the League too rigid a character. He considered that 
the proposed amendment would make no great difference, but that 
it would remove the impression which existed that the Covenant 
was to be unalterable. 

M. Venizelos did not agree; he considered that the smaller 
Powers had already given up a great deal of authority, and that the 
proposed amendment would expose them to the risk of losing still 
more. He asked Lord Robert Cecil to take into consideration the 
feelings of the Neutral States, many of which were already 
nervous. 

At this point President Wilson said that he thought that the 
subject under discussion depended upon an amendment of his own, 
which he asked leave to introduce. 

Lord Robert Cecil accordingly agreed that the discussion of 
his amendment should be deferred. ; 

With reference to his amendment, which read as follows: 


“After the expiration of 10 years from the ratification of the 
Treaty of Peace of which this Covenant forms a part, any 
State, a member of the League, may, after giving one year’s 
notice of its intention, withdraw from the League, provided all 
its international obligations and all its obligations under this 
Covenant shall have been fulfilled at the time of its with- 
drawal’, 


President Wilson said that the United States Senate insisted 
that the right of withdrawal should be explicitly stated. Ten 
years seemed to him to be a suitable time limit. He thought 
that if the League was successful, it would be morally impossible 
for a State to withdraw, while if it was not successful, it would not 
matter. 

M. Larnaude said that we should astonish the world if we 
said merely “we are going to make an experiment for ten years.” 
The world wanted something definite. The essence of the idea 
of the League is that it is to be a permanent thing. The plac- 
ing of a ten years’ time limit would give the idea that the suc- 
cess of the League was not hoped for. The League was not like a 
syndicate of individuals. It was a new departure, which was to 
harmonize international relations, prevent war, etc. He hoped 


THIRTEENTH MEETING OF THE COMMISSION 345 


most earnestly that all we have done for the League was not to be 
thrown away after ten years. 

President Wilson said that he had no idea of limiting the 
duration of the League. Sovereign States could not permanently 
be bound. Ten years would safeguard their rights. 

Lord Robert Cecil said that he agreed with M. Larnaude that 
it would be fatal if the impression was given that we thought 
that the League would not be a success. On the other hand, 
Treaties in the past have suffered from the fact that it has been 
taken for granted that they were to be permanent. It was 
foolish to suppose that any Treaty could be permanent. He had 
always been in favour of giving Treaties a definite time limit and 
of making them renewable. He doubted whether ten years sufficed. 
The effects of the war would only be beginning to pass off in ten 
years. He suggested twenty, or fifteen or sixteen years. He 
thought that it was of great importance that we should bind our- 
selves to make an effort to secure a lasting League. He thought, 
moreover, that if a less period than twenty years was fixed then 
two years’ notice ought to be given, while if twenty years was de- 
cided upon, then one year would suffice. He would prefer twenty 
years. 

Signor Orlando said that he thought that the possibility of 
retiring should be left. M. Larnaude’s objection could be met 
within the text. The proposal to fix a definite time limit had the 
disadvantage that all withdrawals might come together. He con- 
sidered that President Wilson’s amendment should be accepted 
with an additional amendment, so as to mean that any member 
might withdraw after two years’ notice. 

President Wilson said that he would abandon the time limit 
and substitute two years’ notice. 

M. Larnaude was not convinced. He thought that it was 
being assumed that the League was going to be something tyran- 
nical and that States would be anxious to get out of it. This im- 
pression might produce very serious effects. Countries not belong- 
ing to the League might ally themselves against it. We wanted, 
not to make a Treaty on the old lines, but to strike out a new line 
and provide a substitute for the old order of international rela- 
tions. He thought that giving notice by a Great Power would 
throw the League into confusion. While we are trying to estab- 
lish the League, let us be thorough. 

President Wilson said that he did not entertain the smallest 
fear that any State would take advantage of the proposed clause. 
Any State which did so would so become an outlaw. It would 
be breaking up an arrangement on which we must assume that 
the world has set its heart. 

The sovereignty of their own country was the fetish of many 


346 THE DRAFTING OF THE COVENANT 


public men. If they entered into a permanent arrangement they 
would feel that they were surrendering this sovereignty; the most 
precious thing they had, the thing for which they were willing to 
fight and to lay down their lives. 

Too technical an aspect should not be given to ideas which were 
sound at bottom. He blamed lawyers for having given too rigid 
an interpretation to international agreements in the past. 

America was keener on her sovereignty than most countries. 
‘\mericans would have to be assured that they were not perma- 
nently giving up the sovereignty of their State. 

He thought that the clause would have no practical effects, 
while its omission might have very serious results. The time would 
come when men would be just as eager partisans of the sovereignty 
of mankind as they were now of their own national sovereignty. 

It was necessary to give way to current prejudices, but he ~ 
thought that the initial obstacle which lay in the way of the League, 
the idea that nationality came before international co-operation, 
might be overcome. We should make concessions to a sense of 
independence of will. We must not give the people the chance of 
saying that we were surrendering it forever. 

He himself would be in a very singular, a very awkward posi- 
tion if the amendment was not passed, as he had himself been in a 
minority of one in the earlier meetings of the Commission as an 
anti-secessionist. He had never been a believer in secession, — 
though he came from a Southern State. 

No State having entered would have a moral right to with- 
draw, since by entering it would have conferred a benefit upon 
mankind. States would have a legal right, that was all that he — 
proposed to admit. 

He had assured his colleagues in America that everyone took 
it that the right to secede was assured. He was afraid that the 
Senate would not come in if they thought that they had not got it. 

M. Bourgeois said that all that was wanted was not to fix a 
definite time limit. There should be a negative instead of a posi- 
tive formula: something of the following kind: 


“No State may withdraw without being quit of its obliga- 
tions and having given notice.” 


This would leave the right to withdraw, and would also ensure 
that states might not do so except on terms that would not damage 
the League. 

Lord Robert Cecil said that the rule of International Law 
was that if no definite term was fixed withdrawal was illegal. 
Denunciation was illegal unless expressly provided for. 

President Wilson recapitulated the arguments in favour of 
a positive term for the benefit of the French authorities. 


THIRTEENTH MEETING OF THE COMMISSION 347 


M. Larnaude said that for some time past national sovereignty 
had been a fiction. The question of the cessation of military 
service was one which was keenly discussed in every hamlet, 
in every cottage, in all France. If the people of France thought 
that the League was to last ten years only, they would think that 
it was already bankrupt. He repeated his assertion that the 
League was not an ordinary Treaty. 

M. Vesnitch said that the quintessence of the League was 
that it was to be a League of Liberty. It should be as elastic as 
possible. The properties of an ideal organization should be re- 
tained. No chains should be laid upon States entering the League. 
The same questions as the President stated would be asked in 
America would be asked in many countries. 

M. Reis said that we had already been widely accused of 
having laid violent hands upon national independence. We should 
do all that we could to remove that impression. 

Signor Orlando said that the Meeting was in agreement that 
the general delay should be abolished. 

M. Venizelos said that the Meeting did not agree. He wanted 
a term of twenty years fixed, but he would accept fifteen or even 
ten. The essential thing was that some security should be ob- 
tained. 

M. Larnaude said that he thought that the term should be 
suppressed. Nations leaving the League should be compelled to 
say why. 

Signor Orlando said that motives would always be found. 
He thought that liberty of action was essential. He himself lived 
the life of a prisoner. The difference was that he did it voluntarily. 
M. Larnaude had said that we were going to establish a new 
conception of Right. If we were going to do that, we must have 
confidence. 

President Wilson agreed with M. Larnaude’s hopes and am- 
bitions. We must make a start. If the Senate was not given 
a chance of retiring, the difficulty of inducing them to come in 
might be so great that it would be impossible to start the League. 
Once it was started he was convinced that the United States would 
stay in till the last. 

M. Bourgeois adhered to the principle that Nations should 
have to find justification for leaving the League. 

M. Venizelos agreed that two years’ notice without a time 
limit would suffice. 

M. Vesnitch thought that it would not be necessary to re- 
tain the clause compelling retiring members of the League to have 
fulfilled their obligations. 

The result was the adoption of the withdrawal clause in the 
following form: 


348 THE DRAFTING OF THE COVENANT 


Any State, a member of the League, may, after giving two 
years’ notice of its intention, withdraw from the League, provided 
all its international obligations and all its obligations under this 
Covenant shall have been fulfilled at the time of its withdrawal. 


Thereupon Cecil’s proposal for amendment of the Covenant 
by a simple majority of the Members (including those on the 
Council) in place of a three-fourths majority was accepted with- 
out further discussion, although Veniselos had originally opposed 
ih ie 

Another British amendment, for an additional Article re- 
garding the appointment of women to the Secretariat etc., was 
accepted. As proposed it was in this rather bare form: 


All bodies formed under or in connection with the League, in- 
cluding the Secretariat, may comprise women as well as men. 


There was little discussion of the point, although according 
to the French minutes Cecil referred to some British decision in 
which it had been held that women were not within the terms of 
a Statute unless expressly named. As to this I wrote “It is a rule 
of English Law, not International Law, that women are excluded 
if not named.” Finally there was a general assent to the proposal 
for the appointment of a Committee on the organization of the 
League; but no action was taken in this regard till later. 

The minutes are very much mixed regarding certain French 
proposals at this meeting, none of which, however, was pressed. 
These proposals will be found correctly printed in the Annex to 
the French minutes of the Twelfth Meeting. The first of them 
was to recast and extend the language of Article 20 (in the old 
numbering) relating to labor; the second was im form 
an amendment to Article 21 (old numbering) which concerned 
freedom of transit and equitable treatment of commerce. The 
French amendment, however, would have included industry as 
well as commerce,! and also added various clauses ;? the first of 


* As to this, I wrote at the meeting: There is not any international industry; 
labor is already provided for. 
? My summary of these, as I wrote it at the meeting for Wilson was: 
Ist paragraph looks toward a joint post-war budget of the States. 
and paragraph provides an international organization of production. 
3rd paragraph is a provision for property protection of the property 
of foreigners. 


ee ee ee ee. lL 


—— + — 2 oo 


a 


THIRTEENTH MEETING OF THE COMMISSION 349 


these, while ambiguous, looked toward the readjustment of the 
Interallied debts; then followed a paragraph for the international 
organization of production and finally a provision for protection 
of the property of foreigners. Furthermore the French proposed 
a new Article (21 bis) for an Economic Section of the League. 

Perhaps in part because of the fact that the former Articles 
20 and 21 had, with 18, been combined in a new Article (19) 
both sets of minutes are very obscure here. The French minutes 
(aside from the Annex to the Minutes of the Twelfth Meeting) 
give in part the text of only one of the three proposals and say 
nothing about the text of the other two, although the discussion 
is pretty well reported and includes the remarks on the Belgian 
proposal for a permanent Commission on Agriculture, of which 
the English minutes make only a brief mention. On the other 
hand, where the English minutes refer to two of the proposals 
of the French, they do not state their purport correctly, and they 
hardly reproduce the discussion at all; and where the debate is 
given it is wrong. Wilson’s remarks about the Flag and the 
Dollar, if they are reported with entire correctness in either set 
of minutes, which is highly doubtful, had nothing whatever to do 
with the creation of an Economic Section of the League, as is 
indicated in the English minutes. They related to the last para- 
graph of the second French proposal? which contemplated pro- 
tection of the property of foreigners (e. g. American property 
in Mexico). In the earlier draft of the English minutes Wilson’s 
statement is given as follows: 


President Wilson said that he thought that the proposed new 
clause admitted a most dangerous principle, which was known in 
his country as the principle that “the Flag follows the Dollar”. 
In his opinion no Government ought to support its nationals in 
claims to the detriment of the country against which the claim is 
made. He held that the League should be on its guard against ac- 
cepting principles of this kind. Since he had had anything to 
do with the Government of the United States it had refused to 
support capitalists who had made investments abroad which were 
unreasonable and which gave them an undue advantage over the 
country concerned. 


Two Belgian suggestions were made, only to be withdrawn. 
One was for the creation of a permanent Commission on Agri- 


*See Annex to the French minutes of the Twelfth Meeting, amendments 
proposed by the French Delegation, Article 21, last paragraph. 


350 THE DRAFTING OF THE COVENANT 


culture. As the French minutes show, Orlando pointed out that 
the functions suggested for such an organization were already 
performed by the International Institute of Rome. The Belgians 


also had on their amendment paper an Article for an International — 


Commission on Intellectual Relations, an institution which the 


League has since created. The text of the Belgian amendment was | 


this: 


Les Etats associés assureront, dans la plus large mesure pos- 
sible, le développement des relations internationales, morales, 
scientifiques et artistiques entre les divers peuples et prouveront, 
par tous les moyens, la formation d’une mentalité internationale. 

Il est créé, a cette effet, une Commission internationale de re- 
lations intellectuelles. 


There seems to have been no discussion of the proposal; the 
minutes do not mention it at all, though the early draft of the 
English minutes says that it was brought forward and withdrawn. 

Just before the adjournment of the meeting, which took place 
at 11:15, Bourgeois again! brought up the two French amend- 
ments for an International General Staff etc., and asked for a vote 
on them; but on the urging of Orlando, Cecil, Veniselos and Ves- 
nitch this troublesome question again went over. An account of 


this episode appears in some detail in the French minutes. The © 


English minutes make no more than a bare mention of it; but the 
account of the conclusion of the meeting in the earlier draft of 
the English minutes read thus: 


President Wilson said that revision was now to be under- 
taken by the Committee on Revision, consisting of Lord Robert 
Cecil, M. Larnaude, M. Venizelos and Colonel House. 


Lord Robert Cecil said that the League of Nations would — 


soon be a part of international law. It was important that it 
should start work at once. He thought that a small Committee 
on organization should be appointed at once, to consider questions 
such as the housing of the League Secretariat, etc. 

M. Bourgeois asked whether the Commission would have an- 


other opportunity of going into the question of limitation of © 


Armaments, etc. 


President Wilson said that the’ matter had been several times © 


discussed, and that it was useless to discuss it again. 
M. Bourgeois wanted the question to be put to the vote. 


* See p. 319 sq. and p. 324 sq. 


THIRTEENTH MEETING OF THE COMMISSION 351 


Signor Orlando beseeched M. Bourgeois not to press the mat- 
ter; a vote might have most regrettable consequences. 

Lord Robert Cecil said that taking the vote might be deferred 
until the next meeting. 

M. Venizelos said that he did not think the question was one 
for the Commission. 


As I intimated above, one result of these three March meetings 
of the Commission was that the Drafting Committee became in 
fact a Committee on Revision, as indeed Wilson called it when he 
named its members.1. A curious incident occurred in this con- 
nection. Wilson was on his feet and the words naming the Draft- 
ing Committee from among those who had served previously 
(Cecil, Veniselos, Bourgeois or Larnaude, Hymans and Vesnitch) 
were seemingly almost spoken when a slip of paper with four 
names on it was passed in front of him on the table. Glancing 
down at it, he changed the almost uttered words and included 
Colonel House without any perceptible hesitation or pause and 
even with a polite and complimentary expression of reasons. 

Colonel House told me at the time that I was to take his place 
on the Drafting Committee; and Cecil said to me that he hoped 
that the Committee would interpret their duties liberally, as much 
had to be recast and changed; and I agreed that I would confer 
_ with Hurst about the text as soon as I had had an opportunity to 
go over it myself. 

I mention occasionally the “Draft of March 26”; it may 
be said, however, with a good deal of truth that technically there 
was no such Draft. Going back to the Covenant of February 
14, which was officially the basis of the work of the Commission 
during their three March meetings, what had happened was that 
most of the changes agreed to between Wilson and Cecil on March 
18 had been accepted either in form or in substance; and quite 
a number of other changes had been accepted, generally in prin- 
ciple, and had been referred to the Drafting Committee together 
with various questions about the text which had come up at the 
three meetings. The task of that Committee was really to recast 
the text in the light of the discussions and in accordance with their 
own views; and preliminary to the work of the Committee 
was the preparation of a complete draft for them to work 
with; for the language of a paper can never be written by a 
Committee. All that a Committee can do collectively is to change 


*The minutes generally call it the Drafting Committee, so I use that name. 


352 THE DRAFTING OF THE COVENANT 


a draft before it; the writing of a draft is almost invariably done 
by one individual, sometimes, with difficulty, by two; hardly ever 
by any more. 

As a preliminary to such a preparatory draft for the Drafting 
Committee, there were printed English and French texts designed 
to show the draft of March 26 so far as it was considered that 
that draft could textually be shown. In other words, the language 
was subject to various decisions taken or questions raised by the 
Commission which were not textually included. For the sake 
of completeness and because this draft of March 26 must occas- 
ionally be referred to, I reprint its English text as Document 27. 
The equivalent French I omit; even the English print was not 
generally used or even generally circulated; it was intended chiefly 
to aid in the work of the Drafting Committee. 

There was prepared by Mr. Shepardson an elaborate list of all 
the references to the Drafting Committee during these three 
March meetings of the Commission. Such of these as were not 
textually included in Document 27 are as follows: 


Article 6: The suggestion of Larnaude to use the word 
“inviolability’ instead of “extraterritoriality”. 


Article 11: The amendment of Larnaude to permit an im- 
mediate session of the Council in case of urgency. 


Article 12: The French and British amendments.? 


Article 13: The British amendment defining “justiciable dis- 
putes.” * with Wilson’s suggestion about it. The 
Belgian amendment.* 


Article 14: British and French amendments regarding the 
Permanent Court of International Justice.® 


Article 15: The French amendment and the Greek amendment 
relating to the procedure before the Assembly ;® 
also the proposal of Wellington Koo regarding 
the qualification of Wilson’s amendment concern- 
ing domestic questions.” 


Article 18: The British amendment to recast the eighth para- 
graph.8 


* Quoted p. 325. 
» These are discussed supra, p. 326. 
* See p. 327 sq. 
“See p. 328. 
° These are discussed and quoted at p. 328 sqq. 
° See p. 330 sq. 
*See p. 331 sq. 
* See p. 339. 


THIRTEENTH MEETING OF THE COMMISSION 353 


Article 19: The question as to whether in clause (a) the 
International Bureau of Labor should be men- 
tioned.1 


Thus it may be said that the English text sent to the Drafting 
Committee was Document 27, subject to the above references; 
but in its work, as will be seen, the Drafting Committee went 
somewhat beyond these limits. 


*See p. 340 sq. 


CHAPTER XXVIII 
FURTHER CRITICISMS 


Prior to the discussions and work of the Drafting Com- 
mittee there were received and considered various important cri- 
ticisms of the Covenant of February 14. Some of them influenced 
the form of the pending revision. None of them of course took 
into account any of the changes that had already been made in 
the Covenant of February 14 by which indeed some of their sug- 
gestions had been anticipated. 

First to be mentioned here are two Dominion criticisms which 
had been circulated at the Thirteenth Meeting of the Commission 
on the League of Nations on March 26. 

The Memorandum of Sir Robert Borden, dated March 13, 
which follows, was written by an advocate of the League and in a 
spirit of helpfulness.t It contained a significant expression of the 
Canadian opposition to Article 10, an opposition, however, which 
was founded im part on a very general misconception of the legal 
effect of that Article as written. It is erroneous to suppose that 
Article 10 includes the idea that “all existing territorial delimita- 
tions are just and expedient’’; for the principle of Article 10 here 
is merely that forcible annexation shall not result from “external 
aggression.” Nor is there, in my opinion, any inconsistency be- 
tween the Articles of the Covenant regarding arbitration etc. on 
the one hand and Article 10 on the other. 


1. This Memorandum has been prepared with a full appre- 
ciation of the valuable work accomplished in presenting to the 
world concrete proposals for the establishment of the proposed 
League. It has been undertaken also with at least a partial under- 
standing of the difficulties encountered by those responsible for 
the framing of the Covenant. 

2. It will be agreed that in the form of expression simplicity, 
clearness and directness should be sought and that prolixity and 
ambiguity should be avoided as far as possible. 

3. It will be agreed also that in substance, the provisions 


*The memorandum quoted each Article of the Covenant of February 14 in 
full. These are here omitted. 


354 


FURTHER CRITICISMS 355 


should be effective and practicable; but necessarily the draftsman 
must continually bear in mind the reluctance of each nation to 
relax control of matters within the scope of its sovereignty. 

4. In the following proposals, attention has been given to both 
form and substance; but there has been an endeavour to adhere 
as closely as possible to the language as well as to the purpose 
and scope of the Covenant as drafted. 

5. In cases where the reason of the proposed emendations 
seems fairly clear and obvious, the draft of an amendment is 
submitted. In other cases the memorandum submits suggestions 
or points out difficulties. 


ARTICLE I 


Proposed amendment: The action of the High Contract- 
ing Parties under this Covenant shall be effected through the 
instrumentality of a Body of Delegates, of a Council, and of 
a permanent Secretariat. 


Reasons for amendment: Unnecessary words are omitted, the 
meaning remaining unchanged. The Council is not really an ex- 
ecutive body. 


ARTICLE II 


Proposed amendment: The Body of Delegates shall con- 
sist of representatives oi the High Contracting Parties each 
of whom shall have one vote and not more than three repre- 
sentatives. Meetings of the Body of Delegates shall be held 
at stated intervals and also as occasion may require at the 
Seat of the League or elsewhere as may be determined from 
time to time. 

The Body of Delegates, in addition to any powers or duties 
expressly or impliedly conferred or imposed by this Covenant, 
shall report upon any matters submitted to it by the Council, 
and may also of its own motion, make recommendations to the 
Council respecting any of the matters set forth in the Pre- 
amble. 


Reasons for amendment: (a) Unnecessary words are omitted ; 
(b) the order of expression is changed so as to conform with 
Article 111; (c) the Body of Delegates is established by language 
corresponding to that employed in Article 111; (d) the general 
powers and duties of the Body of Delegates should be expressed. 


ARTICLE III 


Proposed amendment: The Council shall consist of repre- 
sentatives of the United States of America, the British Empire, 
France, Italy and Japan, together with representatives of four 


356 


THE DRAFTING OF THE COVENANT 


other States members of the League to be selected by the Body 
of Delegates. Pending such selection representatives of 
shall be members of the Council. 

Meetings of the Council shall be held at least once a year 
and also as occasion may require at the Seat of the League 
or elsewhere as may be determined from time to time. 

The powers and duties of the Council shall extend to all 
matters within the sphere of the League as defined in this 
Covenant and generally to all matters affecting the peace of 
the world. 

If the direct interests of any State are to be considered 
at any meeting of the Council, such State shall be requested 
to send representatives to such meeting; otherwise no such 
State shall be affected in respect of such interests by the con- 
clusions reached at such meeting. 


Reasons for amendment: (a) Unnecessary words are omitted ; 


(b) the order of statement is made to conform with Article 11; 
(c) the definition of the powers and duties of the Council is 
separated from the minor question of arranging the meetings; 
(d) the last sentence has been amended so as to avoid the possi- 
bility that every Power must receive notice to attend every meet- 
ing; (e) the word “binding” seems inappropriate. 


Cle. 


ARTICLE IV 


Proposed amendment: The Body of Delegates and the 
Council respectively shall have power, by a majority of the 
States represented, to regulate from time to time the procedure 
at their meetings. 

The first meeting of the Body of Delegates and of the 
Council shall be summoned by the President of the United 
States of America. 


Reasons for amendment: (a) Omission of unnecessary words, 


ARTICLE V 


No amendment is suggested. 


ARTICLE VI 


No amendment is suggested. 


ARTICLE VII 


Proposed amendment: Membership of the League is lim- 
ited to fully self-governing countries including Dominions 
and Colonies. 


FURTHER CRITICISMS 357 


Admission to the League of States not Signatories to 
the Covenant and not named in the Protocol hereto requires 
the assent of not less than two-thirds of the States repre- 
sented in the Body of Delegates. 

No State shall be admitted to the League unless it has 
effectively demonstrated its sincere intention to observe its 
international obligations, and unless it conforms to such prin- 
ciples as may be prescribed by the League. 


Reasons for amendment: (a) Omission of unnecessary 
words; (b) a more direct and orderly statement. 

Observations: The Article is obscure in not defining the 
authority which shall prescribe the principles to which the State 
seeking admission must conform. The intention would be clearer 
if the words “through the Council” were added at the end of the 
Article. 


ARTICLE VIII 


No attempt has been made to redraft this Article as it would 
involve important considerations of policy on the part of each 
State. The objections to the Article in its present form are, 
however, obvious; (a) The different forms of expression em- 
ployed may lead to confusion. “National armaments” first ap- 
pears; then follows “military equipment and armament”; and 
lastly we find “munitions and implements of war.” (b) The 
Council is to formulate plans for effecting reduction; but there 
is no suggestion as to the action proposed for putting such plans 
into execution; unless, (c) the second sentence of the first para- 
graph is intended to set forth the action to be taken upon such 
plans when jormulated. Ii so, the draft is confused and redun- 
dant. (d) The expression “when adopted” in the second sen- 
tence is ambiguous. Are the limits to become effective when 
adopted by the Council itseli or when adopted by the Government 
of the State in question? Possibly the ambiguity may be inten- 
tional; but it is submitted that any ambiguity in so important a 
document is unfortunate. (e) If the Council is merely to recom- 
mend, there should be a clear statement to that effect. If on the 
other hand the Council is to determine absolutely, then the ex- 
pression should be equally clear. (f) The second paragraph gives 
the impression of a weak attempt to control the production of 
munitions and implements of war. Whom is the Council to ad- 
vise, and how and by whom is its advice to be carried into effect? 
If it is merely to recommend or if on the other hand it is to act, 
the statement should be in either case clear and unambiguous. 
(g) The concluding paragraph seems equally weak and inef- 
fective. 


358 THE DRAFTING OF THE COVENANT 


ARTICLE IX 


Observations: It would be useful to provide that the Com- 
mission shall have such powers and duties for the purpose men- 
tioned as the Council may determine. 


ARTICLE X 


Observations: It is submitted that this Article should be 
struck out or materially amended. It involves an undertaking 
by the High Contracting Parties to preserve the territorial integ- 
rity and existing political independence of all States members 
of the League. The Signatories to the Covenant are called upon 
to declare (a) that all existing territorial delimitations are just 
and expedient, (b) that they will continue indefinitely to be just 
and expedient, (c) that the Signatories will be responsible there- 
for. The undertaking seems to involve initially a careful study, — 
consideration and determination of all territorial questions be- 
tween the various States who become parties to the Covenant. — 
Even if such a survey were practicable it is impossible to fore- — 
cast the future. There may be national aspirations to which the 
provisions of the peace treaty will not do justice and which can- 
not be permanently repressed. Subsequent articles contemplate 
the possibility of war between two or more of the Signatories 
under such conditions that the other Signatories are not called — 
upon to participate actively therein. If, as a result of such war, — 
the nation attacked occupies and proposes to annex (possibly 
with the consent of a majority of the population) a portion of the 
territory of the aggressor, what is to be the operation of this 
Article? Indeed the Article seems inconsistent with the provi- — 
sions of Articles x11 to xviI inclusive. Obviously a dispute as 
to territory is within the meaning and competence of the six 
Articles last referred to, under which a disposition of the dis- 
pute materially different from that proposed by Article x might — 
be reached. Article xxiv does not seem to remove the diffi- 
culty. 


ARTICLE XI 


Proposed amendment: Any war or threat of war, whether 
immediately affecting any of the High Contracting Parties 
or not, is hereby declared a matter of concern to the League, 
and the High Contracting Parties declare it to be their right 
and duty to take any action that may be deemed wise and 
effectual to safeguard the peace of nations. 

It is also declared to be the friendly right of any High 
Contracting Party to draw the attention of the Body of Dele- 
gates or of the Council to any circumstances which threaten to 


FURTHER CRITICISMS 359 


disturb international peace or the good understanding be- 
tween nations upon which peace depends. 


Reasons for amendment: (a) Explicit declaration of right 
and duty. (b) Omission of unnecessary words. 


ARTICLES XII, XIII, XV, XVI AND XVII 


Observations: Clearly it is not within the competence of 
any human power absolutely to prevent war. Therefore the 
framers of the Covenant have wisely availed themselves of the 
best means of reducing to a minimum the possibility of its out- 
break. The means selected are discussion, publicity and media- 
tion. As President Wilson has truly said, there is force in the 
background, but only in the background. It is a Covenant of 
peace and not of war. If the Great Powers of the world had 
been parties to such a Covenant in 1914, humanity would have 
been spared the horror and sacrifice which have been endured in 
the past five years. 

Even if the provisions of these five Articles were more open 
to criticism than is apparent, one would hesitate to suggest any 
amendment lest the proposal might lead to differences which 
would prevent the adhesion of nations whose support and con- 
currence are of vital importance. The following observations 
are therefore put forward with the reserve which prudence clearly 
dictates under the circumstances: 

First. It is submitted that the form of expression could be 
improved in clearness and directness through the aid of a skilled 
draftsman and without in any way modifying the meaning in- 
tended. 

Second. As the dispositions of these five Articles permit war 
under certain conditions without any breach of the Covenant, it is 
advisable to consider whether the proposed Signatories would 
concur in additional safeguards; or, failing that, whether further 
provisions to prevent the continuance of such a war and to control 
its results might not be advisable. 

Third. The circumstances in which war might break out 
without breach of the Covenant are, inter alia, the following: (a) 
The arbitrators fail to make an award. (b) The arbitrators fail to 
make an award within a reasonable time. (c) The Council or the 
Body of Delegates fail to make a recommendation. (d) The 
Council or the Body of Delegates fail to make a recommendation 
within a reasonable time. 

Fourth. As an illustration, the following case is suggested: 
State “A” intends to attack State “B’’. “A” declines arbitration 
and submits its case to the Council, with the demand that it shall 
be referred to the Body of Delegates. It might not be difficult 


360 THE DRAFTING OF THE COVENANT 


for “A” so to influence the representatives of one or more States 
in the Body of Delegates that no recommendation would be made. 
“A” therefore attacks “B”’, overpowers it, and annexes a portion 

of its territory. g 

Fifth. Exception has already been taken to the provisions of — 
Article x, which possibly might be invoked in aid under such 
circumstances. It is not clear at what stage, under what conditions, — 
or with what result the provision of Article x could be thus 
invoked. 

Sixth. It is suggested that the Articles in question should em- 
body a provision that no treaty embodying terms of peace between 
such contending powers shall be registered under Article xx1m 
except by express permission of the Council. This would give the 
Council definite control of the terms of peace, as no treaty is — 
binding until registered. The power of the Council to revise any - 
such treaty would be of great value in deterring any nation from ~ 
undertaking aggressive war for the purpose of acquiring additional 
territory. | 

Seventh. In connection with these five Articles it is to be ob- — 
served that the Covenant itself apparently prevents any of the Sig- 
natories from going to the assistance of a weak Power aggressively 
attacked by a stronger Power under the circumstances above set 
forth. 

Eighth. In case any High Contracting Party breaks or dis- 
regards its Covenant, how is the fact to be evidenced so as to af- 
fect the High Contracting Parties? There is no express provi- 
sion requiring a determination and a public declaration by the 
Council. If such a declaration is contemplated it would involve © 
delay ; and in that case there should be a provision permitting im- — 
mediate action in the meantime as a state of war is created by — 
breach of the Covenant. - 

Ninth. Amend Article xv as follows: (a) Substitute for — 
the words “the above provisions” the words “the provisions of 


* 


Articles xir to xvi, both inclusive.’ (b) Substitute for the 
word “League” in the last line of the first paragraph the word ~ 
“Council.” 


Reasons for amendment: Obvious. 


Tenth. Strike out the word “Executive” before the word 
“Council” in all these Articles. 


ARTICLE XIV 


Proposed amendment: The Council shall establish a per- 
manent international court of justice, which shall be competent 
to regulate its own procedure and to hear and determine any 


FURTHER CRITICISMS 361 


matter or dispute referred to it under the foregoing Article or 
otherwise. 
Reasons for amendment: (a) More direct statement; (b) Nec- 
essary provision for regulating procedure; (c) Omission of un- 
necessary words. 


ARTICLE XVIII. 


Observations: The methods by which the proposed supervi- 
sion is to be carried out are not apparent. Compare Articles Ix 
and XIx. 


ARTICLE XIX. 


No observations. 


ARTICLE XX. 


Observations: As a pious aspiration this Article is commend- 
able, but it is obviously ineffective except in so far as powers may 
be conferred and duties imposed upon the proposed Bureau of 
Labour. The expression “endeavour to secure and maintain” 
seems inappropriate on the part of any High Contracting Party 
in respect of its own conditions of labour. 


ARTICLE XXI. 


Observations: The provisions of this Article are so indefinite 
that it may mean too much or too little. Its intention should be 
clearly defined. The last two lines seem to have no special relation 
or relevancy to the remaining portion. It is suggested that this 
Article might be omitted as its purpose will be expressed more fully 
in the Freedom of Transit and Equality of Trade Conditions Con- 
ventions. 


ARTICLE XXII. 
No observations. 


ARTICLE XXIII. 


Observations: It is presumed that this Article is intended to 
include a treaty between a Signatory and a non-Signatory State. 
In such case, is it intended that the non-Signatory State shall be 
entitled to the benefit of this Article? If, so, its terms require 
further consideration. 

ARTICLE XXIV. 

No observations. 


ARTICLE XXV. 


Proposed amendment: The High Contracting Parties sev- 
erally agree that all obligations entered into between themselves 


362 THE DRAFTING OF THE COVENANT 


which are inconsistent with the terms of this Covenant are hereby 
abrogated, and they undertake that they will take immediate 
steps to procure their release from every such obligation en- 
tered into with any State not a party to this Covenant, and that 
they will not hereafter enter into any such obligation; nor shall 
any State bound by such an obligation be hereafter admitted to 
the League until it shall have procured its release therefrom. 


Reasons for amendment: This article as originally drafted 
deals with four distinct cases, three affecting the High Contracting 
Parties and one the States not yet admitted to the League. As the 
Article stands these are confused and on its face the second para- 
graph is inconsistent with the first. 


ARTICLE XXVI 


Proposed amendment: Strike out in both instances the 
words “whose representatives compose” and substitute the 
words “represented in.”’ Strike out also the word “Executive.” 
Reasons for amendments: Obvious. 


GENERAL OBSERVATIONS 


In view of criticisms put forward in certain quarters, it is 
suggested that the Covenant shall contain suitable provisions for 
the peaceful withdrawal of any State which may so desire. 

In addition to the provisions enabling the Council and the 
Body of Delegates to determine procedure at their meetings, it 
is suggested that each of those bodies should be empowered to 
establish general regulations as to procedure in respect of other 
matters with which they may be called upon to deal; for example, 
the form and length of notices to States upon reference of dis- 
putes, the arrangements for publicity, the formulation and notifi- 
cation of their recommendations or decisions, etc., etc. 

It is assumed that the adhesion of each Signatory State to the 
Covenant will be subject to the approval of its Parliament. 

It is also assumed that the Dominions of the British Empire 
are entitled to become Signatories to the Covenant. 


The comments of Sir Robert Borden have already been men- 
tioned as being before the Commission on the League of Nations 
on March 26. In a letter of March 21 written to Mr. Oscar 
Straus, Borden stated that his Memorandum had been circulated 
among the members of the British Empire Delegation on March 
13 and that a copy had been sent to President Wilson on. March 
14. In another letter to Straus, dated March 27, Borden wrote 
as follows: 


~~ 


FURTHER CRITICISMS 363 


I am glad to know that a considerable portion of my sugges- 
tions commend themselves to your good judgment. My observa- 
tions with respect to Article x were not intended to affect the 
recognition of the Monroe Doctrine as an International Convention. 
Hitherto it has been simply an article of foreign policy on the 
part of the United States Government; but even with that limita- 
tion it has been of great service in maintaining the peace of the 
world. Probably if it received recognition as suggested, the re- 
sponsibilities which it entails would be more definitely understood, 
not only in the United States but among all the nations. 


The following “Notes on the Draft Covenant” by Mr. W. M. 
Hughes, dated March 21, were written from a rather hostile 
point of view, and most of his detailed criticisms were unim- 
portant; however, the fundamental observation of Hughes that 
the basic principle of a League of Nations should be the idea of a 
standing international conference is sound: 


The following notes do not profess to be an exhaustive cri- 
ticism of the provisions of the Draft Covenant but merely call 
attention to some of the more obvious points that need recon- 
sideration. 

In a document of such vital importance, every line needs 
thorough examination, and I understand that opportunity is to 
be afforded for its detailed consideration by the Peace Confer- 
ence. 

No attempt is here made to discuss how far the Covenant will 
be effective to promote peace and prevent war; nor to enter into 
a detailed criticism of its text; but taking the draft as it stands, 
certain general observations are offered on its outstanding fea- 
tures. 

There are two rival principles that have been set up as the 
foundation of a League of Nations. One is based on the idea 
of an international Government or Super-State; the other on the 
idea of a standing international Conference, or an organ of 
consultation. 

The draft, in its main outlines, is based on the consultative 
idea; but it is full of expressions and phrases which suggest 
the governmental idea and which not only tend to obscure the 
proper functions of the League, but introduce a dangerous am- 
biguity ; dangerous to the acceptance of the principle in the first 
place, and to its successful working if adopted. 

The Executive Council: The first of these suggestions is a 
matter of nomenclature, and is of fundamental importance. The 


364 THE DRAFTING OF THE COVENANT 


“Executive Council” is a misnomer. Its functions are not execu- 
tive, but (except as to Mandates, which will be referred to later), 
advisory. 

“Executive Council” is a phrase taken from government, and 
suggests at once a governmental body. The draft provides for 
three kinds of organs—an “Executive Council,” a “Body of Dele- 
gates,” and a “Permanent Court of International Justice” and 
the inference from the nomenclature is strong that an analogy is 
suggested with the Executive, Legislative, and Judicial Depart- 
ments of a National State. 

This is a false analogy, and the nomenclature should be altered 
to avoid it. 

The origsn of the two bodies, the “Council” and the Body of 
Delegates, is due to the desire to have (1) a body which will 
be representative of all the contracting parties and (2) a body 
small enough for the prompt transaction of business. The natural 
solution of this problem is to have a general body meeting occa- 
sionally for full dress debate, and an inner Committee or Council 
in more frequent session. But it cannot be too strongly empha- 
sized that the large body is not a Legislature, and the small body 
is not an Executive, and a nomenclature which encourages that 
idea is dangerous. Both are organs of international consultations. 

The draftsmen seem to have had some difficulty in defining 
the functions and the relations inter se of these two bodies. The 
provisions for co-ordinating them are slight and fragmentary. The 
“Great Five’ are represented on both. The “Body of Delegates” 
is the electorate which chooses the “four other States” to be repre- 
sented on the Council. The “Secretary General” of the League is 
Secretary to both. But when they come to functions, the relations 
between them are very much at large. They both “deal with” 
matters within the sphere of action of the League; they co-operate 
in the satisfaction of amendments of the Covenant; and the Coun- 
cil may in certain circumstances, and must in others, refer disputes 
brought before it for the consideration of the Body of Delegates. 
But there is no provision that the Body of Delegates lays down 
rules for the Council to carry out; or that the decision of either 
body overrides that of the other. Regarding both as consultative 
bodies, this is as it should be; but it is important that this should 
be made clear. 

It is suggested that the word “Executive” should be omitted 
from the designation of the Council. 

Functions of the Council and Body of Delegates: There is 
the same ambiguity in Arts. 2 and 3 where the general functions 
of the Council and Body of Delegates are mentioned. The Body 
of Delegates meets “for the purpose of dealing with matters within 
the sphere of action of the League.” At meetings of the Council, 


FURTHER CRITICISMS 365 


“any matter within the sphere of action of the League or affecting 
the peace of the world may be dealt with.” 

It does not appear whether the variation of phraseology in these 
two provisions is intentional or not. But the phrases “sphere of 
action” and “deal with” again seem to suggest some governmental 
power. 

It is submitted that reference to the purpose of meeting is out 
of place in these Articles; and that separate provision should be 
made, in another Article, defining the functions of the Council 
and Body of Delegates respectively, e. g. to consider and report 
upon matters affecting international relations or the peace of the 
world. 

Effect of Decisions: The decisions of a meeting with regard 
to any matter will be in the nature of recommendations. The 
provision of Art. 3, that no decision taken at any meeting will be 
“binding” on a Power unless invited, seems to imply a right of 
the Council or Body of Delegates to pass “binding” resolutions, 
in the nature of laws or decrees. This, it is submitted, is incon- 
sistent with the general scheme of the League. If it were con- 
templated to give any legislative power to the organs of the 
League, clearly the whole instrument should be redrafted so 
as to define clearly the extent and the limitations of the Legislative 
power intended to be conferred. 

Admission of New States: Art. 7 requires, for the admis- 
sion of New States, invited to adhere to the Covenant, the 
assent of “not less than two-thirds of the States represented in 
the Body of Delegates.” It is not stated who is to issue the invi- 
tation nor how the required assent is to be given. The words 
are open to the construction that the right of admission is con- 
ferred by an affirmative vote of the requisite majority in the House 
of Representatives. 

It is submitted that—apart from other objections—this con- 
struction would be inconsistent with the functions of the Body of 
Delegates as contemplated by the general scheme. 

It is not stated who has to be satisfied of the effectiveness of 
the guarantees mentioned in the last paragraph of the Article. 
But questions of compliance by a member with the provisions of 
the Covenant are for consideration by the Council, not by the Body 
of Delegates. The article appears to need reconsideration. 

Reduction of Armaments: The drafting of Art. 8 is un- 
satisfactory. It begins by affirming the principle that reduc- 
tion of armaments is necessary to the maintenance of peace, 
and that the Council is to “formulate plans” for that purpose. 
So far, the consultative nature of the Council is kept in view. 

But it goes on to provide that the Council “shall also determine, 
for the consideration and action of the several Governments” what 


366 THE DRAFTING OF THE COVENANT 


military equipment and armament is fair and reasonable. This 
wording is inconsistent with itself. Determination means decision ; 
and determination for the consideration and action of others is 
a contradiction in terms. 

“Recommend” would seem to be a more suitable word than 
“determine.” 

The article proceeds: “These limits, when adopted, shall not 
be exceeded without the permission of the Council.” Adopted by 
whom? By the Council or by the Governments? If by the Council, 
there is an inconsistency with the “consultative” nature of the 
League, and the Council is empowered to dictate to each H. C. P. 
what its scale of armaments shall be; a position which can hardly 
be contemplated. If by the Governments, the provision appears 
unnecessary and might be omitted; an agreement entered into by 
a Government would of course be binding upon it. 

Interchange of information: The natural meaning of these 
words is that each Power should exchange information with every 
other power. It would be simpler and more satisfactory for each 
Power to give the information to the League. 

Threat of War: The phraseology of Art. 11 is ambigu- 
ous. It is not clear whether “the right to take any action 
that may be deemed wise and effectual to safeguard the peace 
of nations” is reserved to the H. C. P. individually or collectively. 
If individually, concerted action would be altogether optional, and 
each State could act separately at its own discretion. If collectively 
the paragraph is meaningless; for obviously the one thing which 
the H. C. P. cannot collectively surrender is the right to take such 
action. Such a surrender may be made by each to all; but cannot 
be made by all. 

The second paragraph, affirming the “friendly right” of each of 
the H. C. P. to draw the attention of the League to circumstances 
threatening to disturb peace, is a very weak conclusion. Such 
matters have already been declared to be a concern of the League, 
and the right to bring such vital questions before the League 
is necessarily implied in membership of the League. 

It is suggested that the Article be reconsidered. 

Inquiry Before War: ‘There is an inconsistency between Art. 
12 and Art. 15. In Art. 12, the H. C.Piaerestinemanedse 
to make war against a member of the League which complies 
with a recommendation of the Council; in Art. 16, this undertak- 
ing is limited to the case where the recommendation is unanimous. 
As this goes to the very root of the matter, it is clear that amend- 
ment is necessary. 

Breach of Covenant: Art. 16 embodies the “sanction” of 
the Covenant in Art. 12 by providing that a State breaking 
the covenant shall “thereby ipso facto be deemed to have com- 


FURTHER CRITICISMS 367 


mitted an act of war against all the other members of the 
League’”—which undertake to sever relations and intercourse with 
the offending State, and to prevent its intercourse with other 
States. 

In spite of the strong arguments for a definite sanction of this 
character, it is submitted that a pledge of this sort, to enter into 
a state of war automatically in a certain event, is a mistake. The 
weight of the League behind the bare covenant is itself a sanction 
which would be as effective as a pledge. The League ought to be 
left to take counsel when the case arises, without a cast-iron 
pledge. 

It is suggested that the Article be recast, with a view to limit- 
ing it to an affirmation of the right to make war against a covenant- 
breaking State. 

Outside States: The last paragraph of Art. 17 empowers 
the Council, where a non-member has refused the invitation 
of the League to accept the obligations of membership ad hoc 
for the settlement of a dispute, to take such action and make 
such recommendations as will result in a settlement. The func- 
tions of the Council should be limited to making recommenda- 
tions; there is no other action which it can take. 

Mandates: The one definite power of executive action given 
to the Council is the power to define by Act or Charter, the 
degree of authority, control, or administration to be exercised 
by a mandatory State—if not previously agreed upon by the 
Ee Ge, 

This is something of an excrescence upon what is otherwise 
purely a consultative body; and it is to be hoped that its practical 
application will be done away with by the necessary mandates 
being all agreed to by the H. C. P. The functions of the Council 
will then be to receive and examine the reports of the Mandatories, 
to watch, by means of the Mandatory Commission, over the execu- 
tion of the mandates, and to make reports and recommendations. 
If the mandates are all so agreed on beforehand, par. 8 of Art. 
Ig can with advantage be omitted. 

General Arrangement: It is submitted that it would help 
to a clear understanding of the scope and functions of the League 
if its provisions were rearranged so as to set out in separate 
groups: 

(a) The principles agreed to by the H. C. P. 

(b) The covenants entered into in relation to those principles. 

(c) The organs for international co-operation and consultation 

established by the League. 

(d) The functions of those organs. 

In the present draft, the principles, the covenants, and the 
functions of the Council and Body of Delegates are scattered 


368 THE DRAFTING OF THE COVENANT 


through the instrument, with the result that it has a somewhat 
formless appearance and the relations of its different provisions 
are somewhat obscured. 

The draft as it now stands, halting between the two inconsistent 
principles of international co-operation and supra-national govern- 
ment, now leaning in one direction and now in the other, is open 
to widely different interpretations, and stands in serious danger 
of combining the disadvantages of both with the advantages of 
neither. 


There were also received various American criticisms of the 
Covenant of February 14 which require mention; the constructive 
suggestions which they contained were to a large extent favorably 
considered; furthermore they show to some degree how far 
American sentiment then reached Paris. 

The most notable of these papers, combining learning, polli- 
tical wisdom and common sense, was this letter from Mr. John 
W. Davis to Mr. White: 


EMBASSY OF THE UNITED STATES 
oF AMERICA 


Lonvon, March 24, 1919. 
My pear Mr. WHITE: 


Your letter of the eighteenth was duly delivered to me by 
courier and I take the first uninterrupted opportunity I have had 
since its receipt to make reply. Your request for my criticisms 
on the draft Covenant of the League of Nations finds me empty 
handed for I have never undertaken to put down in words the 
changes I would make if a free hand were given me. The only 
copy of the Draft which I have seen was that which appeared in 
the papers under date of February the 14th and while I read it with 
some effort at critical appreciation I did not attempt to put my 
thoughts in regard to it in order partly because of preoccupation, 
partly because of a want of information as to the reasons which 
prompted the use of this or that language, and partly because I 
knew that it would inevitably undergo further revision at the 
hands of its framers. It seems, therefore, rather a fruitless task 
to engage in criticism of a document which may have already 
changed its form. There is always a danger, moreover, that long 
range criticism based on insufficient information may simply create 
doubts instead of removing them. 

From the standpoint of information I am no better off in at- 
tempting to meet the attacks which are being made on the project 
in the United States. The only speech of which I have seen any- 


FURTHER CRITICISMS 369 


thing approaching a complete text is that made by Senator Lodge 
in the Senate on the 28th of February. I gather that out-and- 
outers like Borah, Reed or Thomas are professedly against the 
_ whole idea and will be satisfied with nothing less than a policy 
of absolute isolation. I confess that, notwithstanding his pro- 
testations to the contrary, Senator Lodge’s speech makes on me 
a not dissimilar impression and leaves me wondering whether he 
would not have been equally ready to attack the project if it had 
been submitted in any other form. Let me summarize his objec- 
tions as I gather them from the speech in question with my com- 
ment in relation to the same: 


(1) It is an abandonment of the policy of detachment from 
European affairs enjoined by the Farewell Address. 

I do not concede that Washington deprecated an arrangement 
of this character when he fulminated against “entangling alliances.” 
But whether he did or not, an effective League of Nations and a 
policy of individual isolation are clearly incompatible. Those 
who favor one must surrender the other, and the American people 
are face to face with this choice. No amendment of the draft can 
meet this objection. I think they stand for the League. 


(2) It abandons if it does not destroy the Monroe Doctrine. 

Senator Lodge states this doctrine to be, ““That the Americas 
should be separated from the interference of Europe, and that 
American questions in all parts of this hemisphere should be 
settled by Americans alone.” I think he would have trouble, in 
history if not in logic, in sustaining this as an accurate statement 
of the Monroe Doctrine. However that may be, he suggests that 
this objection can be met in “three lines” whose contents he does 
not state. 

For my part the guarantee of political independence and terri- 
torial integrity contained in Art. 10 of the draft seems to protect 
all that the Monroe Doctrine was designed to cover, and to sup- 
port it by a universal pledge instead of the mere American tpse 
dixit. Might not any effort to improve upon this be a case 
where “striving to better, oft we mar what’s well?” 

Would we add anything by saying for example 

Art. .... The high contracting parties agree that no part 
of the American continents is to be considered as subject to 
future colonization or acquisition by any European (or Asiatic 
or African) power, 

and/or 

in any case in which it may be desirable hereafter to issue any 

mandates in regard to the same or to authorize the use of any 

force therein to protect the covenants of the League, such 
mandate or mandates shall be addressed solely to states in 


370 THE DRAFTING OF THE COVENANT 


being upon such continents, and such force shall be con- 
tributed by them alone. 


This would certainly meet the demands of the most rigid and 
exacting Monroeite, but how would it be taken by the other 
powers, and how many American states would it take to keep the 
U. S. A. in the straight and narrow path? 


(3) There is no provision made for peaceful withdrawal from 
the League. 

This seems to me a point where there is room for an honest 
divergence of views, without great difference in the final result. 
I think it may be safely predicted that this League is either the 
dawn of a new and permanent international order, from which 
states will no more have the right to withdraw than the individual 
to declare himself out of organized society, or it is a mere transient 
phenomenon which will go to an early grave with none to do it 
reverence. No middle ground seems to me to be possible. 

In the former event states should not be permitted to withdraw ; 
in the latter, no one need worry for the League will collapse of 
itself. 

Personally I dislike to see written on the face of the document 
the sign of its own mortality; but I would yield the point rather 
than have it strangled at birth. 

Of course a peaceable withdrawal should be conditioned upon 
adequate notice—one year or more—to prevent so far as any form 
of words can do it, surprise attacks upon other members of the 
League. 


(4) The arbitration clauses are too sweeping. 

The Senator insists that they should be amended to exclude 
immigration and, “certain other questions vital to our national 
existence,” which again he does not specify. This is the old dis- 
pute which has been up in reference to our arbitration treaties 
for twenty or more years. I may be mistaken but I think the 
existing treaties but lately ratified go quite as far as the present 
Draft, perhaps even further. 

As I read Arts. 13 and 14 the parties agree to submit to 
arbitration only those disputes which “they recognize to be suitable 
for submission to arbitration,’ and all others go for enquiry 
to the Executive Council or Body of Delegates under Arts. 12 
and 15; and the covenant is that in no case shall war be resorted 
to until either (1) arbitration or (2) enquiry has been had. Cer- 
tainly there is ample protection in this against the danger present 
in the Senator’s mind. 

It is true that in Art. 15 the Executive Council is given power 
after enquiry to “propose the measures necessary to give effect 


FURTHER CRITICISMS 371 


to the recommendations” but I do not understand that this is in- 
tended to put the report of the Council upon an equivalent status 
with an award of the Court of Arbitration, or to justify without 
more saying the use of force to execute the Council’s findings. 


(5) The draft does not state “whether the League is to have 
an international force of its own or is to have the power to 
summon the armed forces of the different members of the 
League.” 


Clearly there is nothing in the draft which looks to the creation 
of an international force, nor is the Council given power to do 
more than recommend. Why state a negative? Is it necessary to 
add some such clause as that of our Constitution, that 


“All powers not herein expressly granted to the various 
agencies of the League are reserved to the high contracting 
parties, individually and severally.” 


Does not all this go without saying? 


(6) The language is “crude,” “loose,” “lacks precision” and 

“demands interpretation.” 

General criticism of this sort is not very helpful. Without 
stopping to weigh adjectives it may be agreed that there is room 
for improvement. It could hardly be otherwise in any document 
which is the hurried product of so many various minds. I under- 
stand, however, that revision is now actually in progress, which 
disposes one all the less to spend time in mulling over the initial 
draft in order to meet general objections of this character. I 
take comfort, too, in the reflection that a certain famous charter 
which has been much praised as a model of constitutional style, 
and which in the Convention passed through the Committee of 
the Whole, the Committee of Revision, and the Committee on 
Style under Gouverneur Morris, has given the Courts of the 
U. S. A. work for one hundred and thirty years in an effort to 
fathom all its meaning—and the job is not finished yet. 


(7) That the proposition is altogether altruistic. 

This is not the Senator’s exact language but he insists that 
“if the United States enters any League of Nations it does so for 
the benefit of the world at large and not for its own benefit”; 
“whatever we do there—Europe—we do from almost purely altru- 
istic motives”; “to make any real advances toward the future 
preservation of the world’s peace will take time, care and long 
consideration. We cannot reach our objects by something hastily 
constructed in a few weeks in Paris, in the midst of the excitements 
of a war not ended.” 

It is these sentences and others like them which lead me to 


372 THE DRAFTING OF THE COVENANT 


suspect that the Senator, whether he realizes it or not, is au fond 
against any effort at a new international order, and that his mind 
is bent not upon amendments which would render the present 
scheme acceptable but upon objections which would render it or 
any substitute impossible. I say this not in criticism of his attitude 
but because I think it must be borne in mind in any effort made to 
meet him. If the iron is not hot now, when will it ever be? 

I am quite aware that what you have asked for is not my 
opinion of the speech made by Senator Lodge, or anyone else, 
but my own criticisms of the League Draft itself. I have kept 
this in mind and have used the Senator simply as a peg on which 
to hang my own opinions. For the reasons at which I have hinted, 
I hesitate to go further and make affirmative suggestions. Cer- 
tainly I should not wish to do so at the request, or for the use of, 
any person other than yourself, the President, and your fellow 
Commissioners; nor, on the other hand, have I any desire to with- 
hold any contribution, however slight, which I am able to make 
to the success of your labours. I offer, therefore, the following 
queries based on the Draft of February 14th which lies before 
me and which you are at liberty to submit to any of your fellow 
Commissioners : 


(A) By Art. 2 the Body of Delegates is authorized to deal 
with “matters within the sphere of action of the League”; by 
Art. 3, the Executive Council with “any matter within the 
sphere of action of the League or affecting the peace of the 
world.” 

Why this difference in language? What are the matters 
affecting the peace of the world which are not within the sphere 
of action of the League? Why not use the same language as 
to each; indeed why use the phrase at all, for it seems to add 
nothing to the sense. 

(B) How many representatives is each power to have on 
the Executive Council under Art. 3? 

(C) Under Art. 7 no state is to be admitted hereafter to 
the League “unless it is able to give effective guarantees of its 
sincere intention to observe its international obligations.” 
What guarantees are referred to; not naval or military for they 
are provided for in the succeeding phrase. 

Would the meaning be better expressed by the words “un- 
less in the opinion of the Body of Delegates it may be expected 
to observe its international obligations” ? 

(D) Certain subjects are committed to the League eo 
nomine, as for instance, by Art. 7, the prescribing of principles 
in regard to naval and military forces and armaments for 
incoming states; by Art. 9, the receipt of advice from the per- 


FURTHER CRITICISMS 373 


manent commission on military and naval questions; by Art. 
18, the supervision of the traffic in munitions; by Art. 19 the 
supervision of mandates upon report from the Mandatory 
Commission; by Art. 21, freedom of transit and equitable 
treatment of commerce between member states; by Art. 22, 
the control of existing and future international bureaux. 

No agency is designated within whose jurisdiction these 
matters fall. Are they to be dealt with by the Delegates, the 
Council, or the member states as individuals? Have the Dele- 
gates or the Council or both together the power to allocate 
these duties and perform them? 

(E) Art. 14 gives the Council power to formulate plans 
for the establishment of a permanent Court of International 
Justice, which “when established” shall have power, etc. 

Does the Court come automatically into being when the 
Council has formulated the plan, or is the plan to be adopted 
(a) by the Delegates or (b) by the member states as individuals 
before it is operative. 

Should it not read—“The Executive Council shall formu- 
late and report to the high contracting parties for their several 
approval and adoption, plans for the establishment, etc.”? In 
such cases should not the approval of two-thirds or three- 
fourths be conclusive? 

(F) Similar questions arise as to the reports which the 
Executive Council is to make as to plans for the reduction of 
armament (Art. 8, first sentence), private manufacture of 
munitions (Id. third Sentence), the means for fulfilling the 
obligation of Art. 10, and perhaps others. 

In my judgment it will save inevitable dispute, and con- 
tribute to the effectiveness and stability of the League to indi- 
cate in every such paragraph where the power of final action 
is lodged. It can be done with a minimum of words. 

(G) Lodge criticizes Art. 19 on Mandates for its argu- 
mentative and rhetorical, rather than legislative, style. The 
point seems to be well taken and although there was probably 
a reason for presenting it in this shape no doubt it can be— 
and will be—recast to advantage. 


As you will observe most of these questions relate to matters 
of structure and style rather than to principle. Many of them 
may be grist already ground before this letter comes to your or 
another’s hands. It is always a temptation to meddle with other 
men’s words, although it is a thankless task at best especially 
when one does so unbidden. I have no doubt that if Moses had 
submitted the Tablets which he brought from Sinai to the as- 
sembled priesthood we should never have had them in their present 


374 THE DRAFTING OF THE COVENANT 


form. I know they could not have gone unscathed through any 
legislative committee with which I have ever been connected, and 
I have been honored by membership on no small number of such 
bodies; but I cannot believe that when the Covenant comes before 
the Senate its ratification or rejection will turn upon questions 
of style. 

I wish I might be of more substantial aid to you and your 
colleagues in your heavy responsibilities. As it is, I have 
simply added another to the mass of documents that weigh you 
down. My excuse must be that I could not refuse your direct 
request without discourtesy and that I am, with sentiments of 
great esteem and regard, 

Your very humble and obedient servant, 


Joun W. Davis 


Hon. Henry WHITE, 
The American Commission to Negotiate Peace, 
Hotel Crillon, Paris. 


The views of William Jennings Bryan were reported in a 
newspaper article written by him under date of March 12. While 
favorable to the League, he proposed some changes and addi- 
tions. Among these was an utterly impossible suggestion that the 
League should deal with claims for what were called “the waste 
places of the earth.” The idea is another illustration of the 
mysterious identity of the vague phrases of alleged liberal thought 
with the most far-reaching imperialism of the extreme Right. 
A political Einstein could doubtless demonstrate that the sup- 
posedly straight line which runs from the Right to the Left is 
really a circle. The comments of Mr. Bryan follow: 


The League of Nations is the greatest step toward peace in 
a thousand years. The idea of substituting reason for force in 
the settlement of international disputes is in itself an epoch-making 
advance. The constitution of the League as announced provides 
for three things which constitute in themselves an advantage, the 
importance of which can scarcely be estimated. 

Deliberation before war—the investigation of all disputes of | 
their kind and character before hostilities begin. This almost ends 
war. The idea is taken from the 30 treaties negotiated by the 
United States with three-quarters of the world. Our nation, 
therefore, gives to the Peace League its greatest piece of 
machinery. 

Second, the reduction of armaments will make it impossible 


FURTHER CRITICISMS 375 


for a nation to prepare for war without notifying the world of 
its intention. 

Third, the abolition of secret treaties which will do much to 
prevent the combinations which lead to war. If the League of 
Nations did nothing more than provide these three things our 
nation would be justified in supporting it to the utmost. 

It is not to be expected that so great an idea as the League 
of Nations would be made perfect in detail in so short a 
time. There are defects that should be corrected, and the fullest 
discussion of proposed amendments should be invited. The news- 
papers of Great Britain, France and Italy are not backward in 
the expression of their views as to changes that should be made. 
Why should the American people be silent? 

Ours is the nation most influential in the League, and most 
powerful because most disinterested. Its people should help by 
free and frank discussion to perfect the League. The President 
has done the best he could, but he will be aided by intelligent 
criticisms from those friendly to the idea. 

I venture to point out certain amendments that should, in my 
judgment, be made in the interest of a stronger and better League. 
First, the basis of representation is not fair to the United States. 
A comparison of voting strength will show that while our nation 
is the most powerful in the combination, whether measured by 
population, wealth or moral influence, it has no larger vote than 
nations much inferior in population, wealth and influence. This 
inequality ought, if possible, to be corrected, for justice is the 
only foundation upon which any institution can rest in permanent 
security. 

Second, the terms of admission to nations that may desire to 
join hereafter are not fair. To require a two-thirds vote to admit 
a new nation suggests the social club, where a few blackballs may 
keep out an uncongenial applicant. This World League is for 
the world. The President has well said that our nation is not 
interested in a league unless all nations are in it. 

The qualification for admission ought to be fixed, and then 
it ought to be made as easy as possible for those who are qualified 
to gain admission, Under no circumstances should the consent 
of more than a majority be required for the admission of any 
qualified nation. 

The faults of the constitution are found to be in its indefinite- 
ness rather than in things positively objectionable. For instance, 
it is not stated with sufficient clearness that the Monroe Doctrine 
is preserved. 

Our nation is not asking to be permitted to assist in the settle- 
ment of European disputes, and therefore it ought not to be asked 
to give up its paramount influence in the western hemisphere as 


376 THE DRAFTING OF THE COVENANT 


a condition precident to its entry into the League. Then, too, it 
is not stated with sufficient clearness that a League member is not 
required to become a mandatory. 

It ought to be definitely stated that a nation asked to become 
a mandatory is at liberty to accept or decline. Again, it should 
be made clear that the League is not to interfere in the internal 
affairs of the nations belonging to the League. The League is 
for the settlement of international disputes, not for the adjustment 
of differences between a nation and its own people. 

Another matter that should be made clear—and nothing can 
be more important than this—is that each nation has a right to 
decide for itself whether it will undertake the things advised by 
the General Council. The language of the constitution, while not 
definite, would seem to indicate that no nation is required to fur- 
nish force to back up a decision of the Council. But no doubt should ~ 
be left on this subject. This nation cannot afford to allow a coun- 
cil in which it has so small a voice to carry it into war against its 
will. 

Our people will have as much sense when the time comes to act 
as they have now and they will have more light to guide them. When 
the emergency arises and they understand all the circumstances 
and conditions, they may be willing to assist by force, but they 
can not decide in advance or allow a council to decide for them. 

The constitution of the League would seem to imply the right 
of the Council to compel the declaration of an economic boycott 
by the members of the League. This is not quite so serious as 
the declaration of war, but economic boycott is likely to develop 
into a war and an economic boycott may be pecuniarily advantag- 
eous to the nations that want to declare it. Our interests may not 
be identical in this respect, and we ought to have a right to say at 
the time whether we would declare such a boycott. ; 

I venture to suggest that the scope of the Leagues’ work might 
well be extended beyond what is now contemplated. A substitute 
for war must be able to deal with every situation that can become 
a cause of war. 

One of the most fruitful causes of war has been the necessity 
for expansion. Growing nations, feeling the necessity for more 
room, have often gone to war on some clumsy pretext when the 
real purpose has been to secure territory for an increasing popula- 
tion. The right to live is one of the inalienable rights. It is a 
primal right that must be recognized in nations as well as indi- 
viduals. 

Nations exercise the right of taking unused land and dis- 
tributing it among those who need it. So, if the League of Nations 
is to substitute reason for war, it must be able to deal with claims 
that are made for the waste places of the earth. A nation feeling 


FURTHER CRITICISMS 377 


the need for more territory should be able to go before the League 
and present its claims, and point out territory which it can use to 
advantage. 

The Council should consider the claim and advise upon it, 
and the force of public opinion should be used to secure such an 
adjustment of equities as would afford a peaceful means of secur- 
ing needed territory. 

Such adjustments could be made the easier if the League in- 
dorsed the proposition that any nation extending its sovereignty 
over new territory should stand ready to purchase the property 
of residents who do not desire to remain under the new sovereignty. 

The resident does not go with the land. He has rights inde- 
pendent and superior to the right to the land. If against his will 
he is brought under new sovereignty he ought to be able to sell 
his property without loss and choose a sovereignty of his own like. 

1 have suggested what seemed to me to be desirable changes, 
some being modifications, some being merely more explicit state- 
ments. I conclude as I began, that while we should endeavor to 
make the League as nearly perfect as possible, we should not 
allow its imperfections to lead to its rejection. 

We must take risks no matter whether we accept the League 
or reject it. The risks that we take in accepting it are less than 
the risk we take if we reject it and turn back to the old ways of 
blood and slaughter. God grant that those who are intrusted with 
the launching of this great work may have the wisdom to so purge 
it of selfishness and greed, and so infuse into it the spirit of the 
Prince of Peace as to make it the end of war. 


However, in sending these comments of Mr. Bryan to Colonel 
House, Secretary of the Navy Daniels, who was in Paris, wrote as 
follows under date of March 27: 


When we were talking about Mr. Bryan and his attitude toward 
the League of Nations to secure peace, I told you I would send 
you a copy of Mr. Bryan’s statement in which he suggests certain 
amendments. I do not know whether I told you Mr. Bryan said 
while he believed these amendments were very important, so great 
was his faith in the absolute necessity of the League that we had 
better take no chances in accepting the document even if the cov- 
enant was not perfect and that it would be disastrous to lose this 


golden opportunity. I am giving the President a copy of this 
statement. 


The amendments of Mr. Root! were received by this cable 
from the Department of State on March 28: 


*Mr. Root’s letter to Mr. Will H. Hays which enclosed his si 
to the oes is dated March 29, 1919, and may be Faded ig ene Se 
Xiii, p. 580. ; 


378 THE DRAFTING OF THE COVENANT 


Following are proposed amendments to the constitution of the 
League of Nations which have been drafted by Mr. Root: 

First amendment. Strike out article thirteen and insert the 
following: The high contracting powers agree to refer to the 
existing permanent court of arbitration at The Hague or to the ~ 
court of arbitral justice proposed at the Second Hague [?], when 
established, or to some other arbitral tribunal, all disputes between 
them (including those affecting honor and vital interests) which 
are of a justiciable character and which the powers concerned 
have failed to settle by diplomatic methods. The powers so refer- 
ring to arbitration agree to accept and give effect to the award of 
the tribunal. 

Disputes of justiciable character are defined as disputes as to 
interpretation of a treaty, as to any question of international law, 
as to the existence of any fact, which, if established, would cen-— 
stitute a breach of any international obligation, or as to the nature 
and extent of the reparation to be made for any such breach. 

Any question which may arise as to whether a dispute is of 
a justiciable character is to be referred for decision to the court of 
arbitral justice when constituted, or, until it is constituted, to the 
existing permanent court of arbitration at The Hague. 

Second amendment. Add to article fourteen the following: 
The Executive Council shall call a general conference of the 
powers to meet not less than two years or more than five years after 
the signing of this convention for the purpose of reviewing the 
condition of international law and of agreeing upon and stating 
in authoritative form the principles and rules thereof. 


On April 17, I919, at a meeting of the Executive Council of the American 
Society of International Law, Mr. Root said (see Proceedings, 1918-20, pp. 
50, 51). i 

I wrote a letter some time ago on the general subject to Mr. Hays, 
and proposed half a dozen amendments. The State Department asked 
for those amendments, and they were furnished to it some time before — 
the letter was sent. The Department cabled the amendments over to 
Mr. Lansing in Paris, and they were before the Commission that was 
revising the Covenant. 

The date on which the amendments of Mr. Root were furnished to the 
Department of State does not appear. However, the Department cable, which 
quoted them textually, was dated March 27 and received at Paris March 28. 

The rather general view, however, that it was this cable of Mr. Root which 
first proposed the definition of justiciable and non-justiciable disputes in 
Article 13 of the Covenant, which Dr. Scott expresses (see The Project of 
a Permanent Court of International Justice. 1920, p. 103) in the state- 
ment that Mr. Root “himself prepared the draft which was embodied in 
Article 13 of that document,’ would seem by the dates to be erroneous. The 
language which is now paragraph 2 of Article 13 was in substance laid before 
the Commission on the League of Nations as a proposed amendment to that 
Article at the Twelfth Meeting of the Commission on March 24, as the min- 
utes of that meeting show. Indeed its text was included in a list of amend- 
ments circulated in typewritten form by the British Delegation at that meeting. - 

The language itself, as Mr. Root pointed out, originated much earlier. As 
he said, it was the language of the Bryce group. See note, p. 327. 


FURTHER CRITICISMS 379 


Thereafter regular conferences for the purpose shall be called 
and held at stated times. 

Third amendment. Immediately before the signature of the 
American delegates, insert the following reservation: Inasmuch 
as in becoming a member of the League the United States of 
America is moved by no interest or wish to intrude upon or inter- 
fere with the political policy or internal administration of any 
foreign state, and by no existing or anticipated dangers in the 
affairs of the American continents, but accedes to the wish of the 
European states that it shall join its power to theirs for the pres- 
ervation of general peace, the representatives of the United States 
of America sign this convention with the understanding that 
nothing therein contained shall be construed to imply a relinquish- 
ment by the United States of America of its traditional attitude 
towards purely American questions, or to require the submission 
of its policy regarding such questions, (including therein the ad- 
mission of immigrants), to the decision or recommendation of 
other powers. 

Fourth amendment. Add to article ten the following: After 
the expiration of five years from the signing of this convention any 
party may terminate its obligations under this article by giving one 
year’s notice in writing to the Secretary General of the League. 

Fifth amendment. Add to article nine the following: Such 
commission shall have full power of inspection and verification 
personally and by authorized agents as to all armament, equip- 
ment, munitions, and industries referred to in article eight. 

Sixth amendment. Add to article twenty-four the following: 
The Executive Council shall call a general conference of mem- 
bers of the League to meet not less than five or more than ten 
years after the signing of this convention for the revision thereof, 
and at that time, or at any time thereafter upon one year’s notice, 
any member may withdraw from the League. 


I think it worth while to make some comment on certain of 
these amendments suggested by Mr. Root, in the light of the 
situation in Paris in 1919 and of the years of subsequent history. 

Mr. Root’s first amendment is for obligatory arbitration with- 
in certain defined lines. Even in 1919 the proposal was outside 
the realm of practical politics. Neither the United States Senate 
nor the British Empire was then willing to adopt such a proposal 
in the Covenant or outside of it. The same situation exists in 
1927. In 1919 the smaller Powers of Europe were willing, 
as they had been for some time previous, to accept obligatory 
arbitration. None of the Great Powers of the world was then 
willing to accept it. Since that time the idea of obligatory arbitra- 


380 THE DRAFTING OF THE COVENANT 


tion has made considerable progress outside of the United States. 
Various treaties embodying the principle have been entered into 
by quite a number of countries and most notable and most im- 
portant of these agreements are those of Locarno. And while no 
Great Power has ratified the obligatory arbitration clause of the 
Statute of the Permanent Court of International Justice, France 
was willing to do so if the Protocol of Geneva went into force. 
France in the Locarno agreements, and Germany and Italy in 
other treaties, have agreed to obligatory arbitration with various 
Powers. But the British do not yet accept the principle or seem 
willing to make a general agreement of arbitration with any other 
country, with the possible exception of the United States; and the 
United States would not now agree to obligatory arbitration with 
any country whatever.? 

Mr. Root’s second amendment proposed an International 
Conference for what is now currently called the “Codification of 
International Law” and for the periodic meeting of such a Con- 
ference thereafter. So far as the text of the Covenant is con- 
cerned, such a Conference might be called without any specific 
provision regarding it.* Looking at the idea on its merits, parti- 
cularly in the light of the discussion of the last few years, it is 
clear that the work of any such Conference or even of a series of 
such Conferences could not possibly achieve any generally accepted 
“codification.” Under the League of Nations some success has 
been reached in various directions toward general agreement on 
the principles and rules of international law relating to certain 
subjects. Perhaps a definite statement of all the rules and prin- 
ciples of international law is a desirable aim; current uninformed 
Opinion seems unanimous in the affirmative, though most stu- 
dents realize that any such “code,” if its creation were possible, 
would raise more ghosts than it laid; but in any case it is clear 
that progress toward such accord will of necessity be very slow; 
certainly in every field there must be considerable preliminary 
technical studies carried on before Governments agree; I mean 
such studies as those of the existing Committee of Experts ap- 


*TIt appears now that Germany will ratify this Optional Clause. 
2 However, the Havana Conference has (February 18, 1928) adopted a 
resolution on the subject to which our Delegation assented. t 
*The Eighth Assembly (1927) passed a resolution for “a first Codifica- 
tion Conference,” to be held in 1929 and to which these three questions will 
be submitted : 
(a) Nationality. 
(b) Territorial Waters. i 3 
(c) Responsibility of States for Damage done in their Territory to the 
Person or Property of Foreigners. 


FURTHER CRITICISMS 381 


pointed by the Council; and as to some subjects, the research that 
has already been carried on ought to be sufficient to demonstrate 
to any impartial mind that general agreement at the present time 
is hopelessly impossible; some points may perhaps be dealt with 
now and others may perhaps be dealt with partially; but that is 
all and it requires a good deal of optimism to go so far. 

Mr. Root’s third amendment covered, inter alia, the Monroe 
Doctrine, adopting here some of the stilted and obscure language 
which was used at the time of the Hague Conventions. Why 
the foreign policy of the United States should be spoken of as a 
“traditional attitude toward purely American questions” has 
always been a mystery to me. Our policy is expressed in our 
action, in our diplomatic correspondence and in our State papers. 
Objection to a phrase may seem hypercritical; but I submit that 
our policy is to be based on common sense and not on tradition. 
Certainly if the Japanese ever thought of acquiring Magdalena 
Bay, I would look to no tradition as a basis for opposition to such 
acquisition. There would be some difficulty in supporting the 
idea that Mr. Monroe and his colleagues had the Japanese Empire 
in mind in 1823. Furthermore, how can it be said that the Monroe 
Doctrine and our foreign policy generally relate to purely Ameri- 
can questions? We bought the Virgin Islands from Denmark 
to prevent them getting into the hands of Germany and we would 
have gone to war for the same purpose. Now to say that the trans- 
fer of territory in the Caribbean by one European Power -to 
another is a purely American question ! would be a contradition 
interms. If the French chose to give up some of their Caribbean 
Islands or French Guiana to the Dutch, would we object? Prob- 
ably not at all. If the proposal were to transfer them to Japan, 
we would go to war to prevent it. Would that be a purely 
American question ? 

The sixth amendment, regarding withdrawal and a confer- 
ence for revision of the Covenant, need not be specially discussed, 
as the withdrawal clause exists (Article 1, paragraph 3) and 
amendments or revision of the Covenant may be proposed yearly 
at the Assembly meetings. 

The fifth amendment is another illustration of Mr. Root’s 
willingness to go far beyond the lengths to which the Senate 

*Cf. the view of Metternich in 1824 who thought that the “grave question” 
to come before the proposed congress or conference to “aid Spain in adjusting 
the affairs of the revolted Countries of America” would not be an American 


question but one “entirely European.” See The Monroe Doctrine 1823-1826 by 
Dexter Perkins (1927), p. 224 sq. 


382 ' THE DRAFTING OF THE COVENANT 


would have gone, even in 1919. In very blunt language, the 
amendment is much more sweeping than even the proposals of the 
French at Paris for international inspection of armaments, etc. 
The Treaty of Versailles provides for such inspection as to Ger- 
many; and it may be that disarmament agreements as they are 
entered into will contain some such clause, although in a milder 
form. The Treaty Limiting Naval Armaments, signed at the 
Washington Conference on February 6, 1922, provided merely 
for reports exchanged by the Treaty Powers, international pub- 
licity, in other words.’ But the time when countries generally 
will agree to any such international inspection as Mr. Root sug- 
gested is still distant;? certainly neither the British nor our- 
selves have ever yet dreamed of agreeing to it.8 

On March 23 Mr. Oscar Straus had cabled for an expression 
of opinion from Mr. Taft as to the “amendments essential for 
Senate confirmation.’ Taft’s answer of March 29, which follows, 
was largely a repetition of his cable of March 18 to Wilson 
which was quoted above :* 


More specific reservation of Monroe Doctrine. Fix a term for 
duration of League and limit of armament. Require expressly 
unanimity of action in Executive Council and Body of Delegates. 
Add to Article xv a provision: That where the Executive Coun- 
cil or Body of Delegates finds the difference to grow out of an 
exclusively domestic policy it shall recommend no settlement. 
Reservation of Monroe Doctrine as follows: “Any American 
State or States may protect the integrity of American territory 
and the independence of the government whose territory it is, 
whether a member of the League or not, and may in the interest 
of American peace object to and prevent the further transfer of 
American territory or sovereignty to any European or non-Ameri- 
can Power.” The unanimity of Executive Council, the American 
representative on it, will secure reasonable distribution of burdens 
for the United States in enforcement of Article x and Article 
XVI. 


A summary of the speech of Mr. Hughes before the Union 
League Club of New York on March 26 was received by radio 
as follows: 


* Cf. the last paragraph of Article 8 of the Covenant. 

*The existing differences of opinion on this point are one of the real 
obstacles in the way of any general disarmament agreement. | 

* The Coolidge administration is very definitely on record against any such 
idea. 

* At p. 277. 


Ce ee ee Ee ee Ee Oe a Ree) See a a ae 


FURTHER CRITICISMS 383 


Charles E. Hughes, in an address before the Union League 
Club Friday, outlined his objection to the League of Nations as it 
now stands. In the opinion of Hughes, as friendly a conference 
as the occasion may require will be ample for years ahead to keep 
the peace of the world. Assuming, however, that something will 
be done toward making effective the project for the League of 
Nations, he declared himself in favor of expressing recognition 
of the Monroe Doctrine in any covenant to which this Govern- 
ment may subscribe, and for the clear and unhampered control 
of American immigration and tariff laws. 

Mr. Hughes said he wished to be understood as being for 
the Society of Nations for the promotion of peace, if it is so organ- 
ized as not to sacrifice our essential national interests. His ob- 
jection to the body of the Covenant was that its terms are vague 
and ambiguous and liable to such difference of interpretation as 
to breed disputes rather than compose them, and he cited former 
President Taft and President Lowell as supporting his contention 
that the Covenant needs clarification. 

Aside from formal improvements, he urged that the covenant 
be amended as follows: 

First, by explicit provision as to the requirement of unanimity 
in decision ; second, by suitable limitation as to the field of League 
inquiries and action, so as to leave no doubt that the international 
concerns of states such as immigration and tariff laws, are not 
embraced; third, by providing that no foreign power shall here- 
after acquire by conquest, purchase, or in any other way any 
possession on the American Continent or islands adjacent thereto ; 
fourth, by providing that the settlement of purely American ques- 
tions shall be remitted to the American nations, and the European 
nations shall not intervene unless invited to do so by the American 
nations; fifth, by omitting the guarantee of Article 10 (for pro- 
tection of territory against external aggression) ; sixth, by pro- 
viding that no member of the League shall be constituted a man- 
datory without its consent and no European or associate power 
shall be constituted a mandatory of any American people; seventh, 
by providing that any member of the League may withdraw at 
pleasure on specified notice. 


“Important changes that are desired,” he said, “are not 
prejudicial to sound international order. Rather will they tend 
to make it practicable and lasting. We can readily arrange 
for desirable conferences without disadvantageous commit- 
ments. The danger now lies not in the menace of force em- 
ployed to further imperial designs, but in disorder due to 
the breakup and removal of traditional restraints and the ten- 
dency toward revolution within the States. 

We should be cautious in making promises which are to 


384 THE DRAFTING OF THE COVENANT 


be remedies for unknown contingencies. It has been said, I 
understand, that the covenant extends the Monroe Doctrine to 
the world. This is a singularly infelicitous and inaccurate 
description of the effect of the covenant upon the Doctrine, 
which is nothing if not a distinctively national policy. The re- 
ported statement is based upon the guarantee contained in 
Article 10 with respect to territorial integrity and political in- 
dependency. The provision of Article 10 is, in itself, in my 
judgment, highly objectionable. But in any event such a 
guaranty cannot be regarded as an adequate substitute for the 
Monroe Doctrine. It is the essence of the Monroe Doctrine 
that it declares the right of self-protection. It does not under- 
take to interfere with or impair the sovereignty of any other 
state, but does seek to maintain our own security. 

It is idle to say that the covenant in its present form ade- 
quately safeguards our traditional policy; in order to safeguard 
interests that are distinctively American, I agree with Mr. Taft 
that there should be a further provision that the settlement of 
purely American questions should be remitted primarily to 
American nations with machinery like that of the present 
League, and European nations should not intervene unless 
requested to do so by the American nations. I regard that 
guaranty of Article 10 for the protection of territorial integrity 
as a trouble-breeder, not a peacemaker. I believe it unneces- 
sary and unwise; there is little ground for supposing it will 
prevent war. In the case of the United States the guaranty will 
not be made good except by action of Congress, and it will be 
for Congress to decide whether we are bound and what we 
should undertake.” 


Speaking of the Constitutional aspects of the covenant, Mr. 
Hughes said there is nothing in our history to give assurance that 
Congress would recognize the authority of the treaty to bind itself 
to declare war in case it did not approve it. In respect also to 
trade and financial relations, he continued: 


“Congress would be the judge of its obligations, and if 


action were not taken as advised by the League, foreign nations 
might regard the United States as guilty of a breach of faith.” 


The Radio News Service also brought this account of an 
article in the Topeka (Kansas) Daily Capital, by Senator Arthur 
Capper : 


I believe Kansas is overwhelmingly for the League of Na- 
tions. I am emphatically for it, because I believe it to be a 
great step toward enduring peace, which is now the aim of the 


. 


7 


FURTHER CRITICISMS 385. 


world and which the world must and will have. People are 
now demanding that for which they gave freely all that human- 
ity has to give and for which our boys died in France. It is 
unthinkable they will be content with less. 

The principles and idea are right. Our isolation is no 
longer possible. Real progress in movement to prevent war 
and stop military rivalry is America’s demand. I have no 
sympathy with the contention that the League agreement will 
tend to involve us in war instead of keeping us out of war. 
I believe the war-weary people of both continents will support 
a military and economic boycott against the first nation which 
attempts to destroy another or again ruthlessly plunges the 
world in war. That means there must be an international 
organization and agreement. It is for us to advance such an 
agreement among the nations in every possible way that will 
lessen the chances of another war. I shall do my utmost to 
bring such an understanding about this conflict with an equally 
important duty, but only to emphasize that duty, and that is, it 
must be so clearly stipulated and understood that the American 
people do not in any respect relinquish their will in the direction 
of matters or questions essentially or nationally American, nor 
any of the Constitutional rights of Congress alone to declare 
war, should our obligations or our duty compel us to engage in 
war. 

I have failed to see that the League of Nations covenant 
can be so changed and improved that as finally shaped it will 
have the confidence and will be satisfactory to the great ma- 
jority of American people. There must be a frank discussion 
if the proposed peace compact is to become a peace in fact. 
The country should be fully informed and should be encour- 
aged to express its opinions. It is not vital that the League 
covenant be formed before the peace treaty is presented. I 
approve of the amendments proposed by Senator Lodge and 
Senator Knox. 

There can be no League by an ultimatum of the President, 
however much we may respect and approve his self-confidence 
and trust his views. There is too much at stake, but it should 
be understood that the people will show scant mercy to a mere 
political obstructionist. It is generally known that the covenant 
as proposed by the President is fundamentally faulty as might 
be expected of first draft of so important and epochal a docu- 
ment. It is ambiguous in its terms, incomplete in its machinery 
for peacefully settling differences between nations, and this 
lack of definite statement shows a need of revision. I think 
we should insist upon specific phraseology, which shall leave 
this nation with the Monroe Doctrine intact, with exclusive 


386 THE DRAFTING OF THE COVENANT 


command of its own policy, with the right of any nation to 
withdraw from the League after due notice, in the event of 
necessity or desirability of such action. 

The covenant must have a more definite reservation for 
preserving the Monroe Doctrine and such stipulations as will 
guarantee its perpetuation. I favor a strong and explicit 
stipulation that no foreign power shall acquire any possession 
on the American Continent. The League Constitution should 
be made more definite as to when its obligations may terminate 
or be renewed. It should set a definite period requiring a rea- 
sonable notice to withdraw. I shall decidedly oppose any 
arrangement to permit foreign nations by a majority vote of 
their representatives in the League to say when this country 
shall send American boys, and how many, to fight on a Euro- 
pean battlefield. I favor making it unmistakably clear that our 
immigration and tariff problems are to be considered as purely 
our own internal affairs. 

The United States of necessity must have exclusive con- 
trol of immigration. It must guard against any possible doubt 
of meaning on these points, especially, and this compels a re- 
vision and amendment to the present draft and plan. 


Finally, a cable to Mr. Lamont of March 28 gave this sum- 
mary of newspaper and other current comment : 


Have made extended examination of editorial expressions, 
especially in the publications you mention. All newspaper com- 
ment is very confused, largely because of misapprehension of the 
purposes of the document and misinformation as to European 
situation. We would sum up the criticism of particular news- 
papers more in detail as follows: 


CHICAGO TRIBUNE: 


Ist, that the Covenant creates a world state in which Amer- 
ica is a junior partner liable to be outvoted. 2nd, we may be 
given a mandate for Armenia, whereas if we are to undertake 
any reforming we should start with Mexico. 3rd, that the 
Monroe Doctrine will be abandoned. 4th, that power of Con- 
gress over immigration and army and navy will be impaired. 
5th, that the President’s insistence on the freedom of the seas 
has apparently been entirely dropped because the document is 
in reality a British proposition. 6th, that the President has 
arbitrarily stated that the Covenant must be accepted without 
amendment except in one small particular, this particular not 
being specified. 7th, that the President is in effect depriving 
the Senate of its constitutional right to advise. 8th, that if 


| 


FURTHER CRITICISMS 387 


Russia refused to pay her bonds held in France and the League 
ordered them paid, millions of American boys might be sent 
to Russia. 


NEW YORK TRIBUNE: 


Ist, that the League is in reality a five-nation League 
rather than an all-nation League. 2nd, that each nation reserves 
liberty of action; therefore there is no direct safeguarding of 
peace. 3rd, that we are now giving up traditional policies and 
getting nothing for it. 4th, that the Covenant impairs the 
sovereignty of the United States and causes us to give up the 
Monroe Doctrine for a bogus league and rope of sand. 5th, 
that we should have a strong league with our real allies. 6th, 
that the President is trying to usurp power of the Senate. 


NEW YORK SUN: 


Ist, that the clause dealing with disarmament and several 
others clauses violate the constitution. 2nd, that we should 
have peace first and then have time to carefully work out the 
problems of the league. 3rd, that the President is trying to 
force an unconsidered plan upon the public by tying it up to 
a peace treaty. 4th, that the Monroe Doctrine is abandoned. 


NEW YORK WORLD: 


This expert had made what purports to be a country-wide 
analysis of the press. It states that this analysis shows a large 
sentiment in favor of a League with a strong sentiment also 
for some revisions of this particular covenant. 


Forgetting for the moment the newspaper comments and con- 
sidering specific suggestions as to amendments whether from those 
in favor or those opposed to the President, the following sugges- 
tions are perhaps worthy of careful consideration: 

One, that it would have been better to avoid the word constitu- 
tion in the Preamble. This is because the word constitution to 
American students of law and history connotes the formation of 
a new world state. 

Two, that the phrase appearing in article two and again in 
article three “within the sphere of action of the league’’ naturally 
invites a close scrutiny of the whole document to see which is within 
the sphere of action of the league. Eleven is then read with refer- 
ence to this broad phrase in article two and article three as a 
result of which it is contended that immigration, tariffs, et cetera, 
fall within the sphere of action of the league when they threaten 
to disturb international peace. There are some suggestions that 
the broad phrase within the sphere of action of the league be 
dropped out of article two or article three and that it be made 
clear that the body of delegates and executive council are merely 


388 THE DRAFTING OF THE COVENANT 


consulting bodies. It has also been suggested that there be a 
specific exception of immigration, tariffs, and other domestic ques- 
tions. 

Three, that there should be a saving of the Monroe Doctrine 
not only in that European troops should not come to this continent 
until invited but also that there should be a specific covenant that 
acquisitions of territory of this continent by foreign powers should 
not be permitted by conquest or even by purchase. The Magdalena 
Bay resolution is circumstance favorable in this case. 

Four, that article ten by requiring us to make specific guar- 
antees of boundaries by involving us on one side or the other of 
every boundary dispute might prevent our localizing quarrels be- 
tween some nations between whom long standing boundary dis- 
putes have existed. Moreover, it would give an unlimited guar- 
antee of boundaries of the new states when we do not know 
whether they should be permanent. Some contend that this article 
should be limited, others that it be dropped entirely. Among the 
latter is Mr. Justice Hughes. 

Five, that article 16 with reference to blockade is not clear 
especially in that it requires the United States not only to prevent 
its nationals from dealing with another outlaw state but also re- 
quires the United States to “prevent” the nationals of any other 
state from dealing with an outlaw state. How could this covenant 
be performed except by blockade and how would it be applied if 
an interior country like Poland went to war with Russia in viola- 
tion of the covenants of the League? How is it contemplated that 
the United States could prevent the Czecho-Slovaks from dealing 
with Poland? 

Six, a further criticism of article 16 is, that taking the 
article as a whole, it is not clear whether the violation of the 
covenant not to go to war without submitting to arbitration or 
inquiry is ipso facto an act of war, or ipso facto a state of war. 

Seven, that article 18 dealing with armament should be swept 
into article eight. 

Eight, that article 21 is too vague. 

Nine, that it should be specifically provided in article 19 that 
no state can be made a mandatory against its will. 

Ten, that it should be explicitly provided that decision is to 
be unanimous except where the contrary is stated. : 

Eleven, that the whole covenant should be limited to a term . 
of years with the provision for renewal or failing that, that any 
nation should have the right to peacefully withdraw after Io or 
20 years upon a given notice. 

In all the foregoing we are not commenting upon the soundness | 
of suggested amendments but merely reporting them. We should 
say that on the whole there has been during the past week more 


FURTHER CRITICISMS 389 


or less of a tendency to submit the covenant to careful scrutiny. 
The vague declamation against it which marked the first two 
weeks is disappearing. On the other hand, a very solid sentiment 
is appearing that it should be amended in many vital particulars. 


It may be said of this cable that it gave a very fair summary 
of the fantastic and absurd statements which certain papers were 
then printing. So far as concerned its specific suggestions of 
amendments, they were to a considerable extent met by the Drait- 
ing Committee text. I wrote a detailed comment on them for 
Mr. Lamont on April 5 as follows: 


This refers to the numbered points in the cable of March 28, 
a copy of which is with your note of April 4. 

A copy of the text as it leaves the Drafting Committee? is 
enclosed which is for your information and use but not to be 
released at present as it has not even gone before the Commission. 


(1) The word “constitution” is now omitted. 
(2) See paragraph 7 of Article xv. 
(8) Article xx1I is now part of xxi and I call attention to 
the first paragraph of that Article. 
(9) See the words inserted in Article xx1, second paragraph, 
“and who are willing to accept it.” 
(10) See the second paragraph of Article v. 
(11) See the last paragraph of Article 1. 


The foregoing relate to changes. The following are comments: 


(3) If there is to be any reservation, it should be broader 
than that suggested. 

(4) This is a question of policy but with the last para- 
graph of Article 1 it naturally becomes less important. 

_ See also Article xrx. 

(5) In the case suggested the prevention would naturally 
be delayed until the final success of the League. Taking 
the paragraph as a whole, the point seems a highly techni- 
cal one at best. 

(6) The criticism seems to be obscure. 

(7) I do not agree. The question of trade in arms and 
ammunition with Africa, for example, is very different 
from the question of armament. 


*See Document 30. 


CHAPTER XXIX 
THE FINAL DRAFTING COMMITTEE 


THE English text of the Covenant reported back to the Com- 
mission on the League of Nations by the Drafting Committee 
appointed on March 26 is (with one notable addition) in large 
part identical with the English text of the Covenant in the Treaty 


of Versailles.1_ The Monroe Doctrine clause, now Article 21, was © 


later added, the Drafting Committee having nothing on the sub- 
ject before them; but not many other changes were made in the 
Drafting Committee text; and all but two, or perhaps three, of 
these other changes were of form and not of substance; and the 
French text was to follow the English. 

The first step toward the work to be done by the Drafting 


Committee was the preparation of a revised text of my own as a 


preliminary to my conferences with Hurst. Devoting almost my 
whole time to the work for two days and a half I went through 
both the English and French texts. I called the English of 
this “my revision’ and it may be worth while to say something 


about the form in which it was prepared. Using sheets of the © 
previously printed English text designed to show the Covenant — 


of March 26 so far as this was textually possible,” I indicated my 
revision on these sheets by ink changes or typewritten riders, 
just as one usually corrects and changes galley proof to go back 


to a printer. With three sets of this revision thus prepared, I — 


was ready to show my ideas in a convenient form to Hurst. One 
thing that I did not do at this time was to attempt any rearrange- 


ment of the various Articles. Some changes in this regard were ! 


inevitable; but it was more convenient to defer them. 
It seems to me unnecessary to reproduce the revision which 


I made as a preliminary to my meetings with Hurst on March © 
29 and 30. Our task was to prepare a text as a basis for the work ~ 
of the Drafting Committee. While our text was submitted to the — 
Drafting Committee both in English (Document 28) and in © 


* For the text reported back by the Drafting Committee see Document 30. 
*i.e. Document 27. } 
*For a note on the Numbering of the Covenant Articles, see p. 469 sqq. 


390 


’ 
; 
4 


THE FINAL DRAFTING COMMITTEE 391 


French, our discussion was almost wholly confined to the Eng- 
lish text.1 For this discussion my revision was the basis; and in 
general, the changes from my revision were of slight importance. 

Both Borden and Hughes in their criticisms of the Covenant 
of February 14 had put forward the view that the term “Execu- 
tive Council” was a misnomer and should be changed to “Coun-_ 
cil.” At my suggestion Hurst and I accepted this view and 
struck out the word “Executive” throughout the Draft. Similarly 
we changed throughout the expression “States Members of the 
League” to “Members of the League,” a simpler and more con- 
venient form. 

When the Commission had considered Article 14, on the Per- 
manent Court of International Justice, it had adopted in prin- 
ciple two amendments to the effect that the jurisdiction of the 
Court should include, as proposed by M. Larnaude, “‘toute ques- 
tion qui lui serait soumise par le Corps des Délégués ou par le 
Conseil exécutif,’ and the somewhat similar proposal of Cecil 
(agreed to by Wilson on March 18): 


and also any issue referred to it by the Executive Council 
or Body of Delegates. 


As I have indicated previously, I was opposed to the language 
of these proposals as being entirely too broad. I thought that al- 
though they were perhaps not so intended, they embodied the idea 
of obligatory arbitration.? In writing my own revision of the 
text before meeting with Hurst, I left them out entirely, so that 
they would come up for discussion. During our conference, 
Hurst wrote out this new draft of the Article which I accepted :? 


The Executive Council shall formulate plans for the establish- 
ment of a Permanent Court of International Justice. The Court 
shall be competent to hear and determine any dispute or difference 
of an international character which the parties thereto may submit 
to it and also to advise upon any legal questions referred to it by 
the Executive Council or by the Body of Delegates. 


This draft met my objections so far as any question of obliga- 
tory arbitration was concerned. However, if the language had 
stood as then written, it would perhaps have been construed to 


*Only the English is printed as Document 28. 

* See p. 290. 

*T still have the paper as Mr. Hurst wrote it. The text in Document 28 
is identical except for the omission of “Executive” and of “may.” 


392 THE DRAFTING OF THE COVENANT 


make the Court the legal adviser of the Council and of the As- 
sembly, a duty which its function of rendering advisory opinions 
does not involve. But that we had advisory opinions in mind is 
shown by my memorandum on our revision (Document 28) 
made at the time, which follows: 


This text is the result of my own revision of the text before 
the Committee, taking into consideration the amendments sub- 
mitted to the Drafting Committee, and a subsequent discussion of 
my own revision and of those amendments with Mr. Hurst, at 
which the text which I had prepared was substantially accepted, 
although certain questions were specifically reserved and will be 
pointed out. 


GENERAL CHANGES 


Throughout the text the word “Council” is used instead of 
“Executive Council” as being simpler and less ambiguous. 

For the sake of simplicity of expression “Members of the 
League” is used instead of “States Members of the League.” 

In the previous text there were various expressions for an 
international controversy. The word mostly used was “dispute” 
but sometimes “dispute or difficulty,” “dispute or difference,” 
“difference,” etc. The word “dispute” alone has been adopted in 
the present text. 


ARRANGEMENT 


There is only one striking change in the arrangement. The 
first part of Article vir has become Article 1, and the last part of 
Article vir is added to a new Article xxvi. This results in the 
former Articles 1 to vi, inclusive, being now numbered 11 to VII, 
inclusive. 


ARTICLE XII-A 


This is a Japanese amendment which was adopted by the Com- 
mission but is not put into the print. The reason for this omission 
is that the provision is utterly impossible of application. Its lan- 
guage is as follows: 


From the time a dispute is submitted to arbitration or to 
inquiry by the Executive Council, and until the lapse of the 
aforesaid term of three months, the parties to the dispute shall 
refrain from making any military preparations. 


The theory of the provision is if, for example, France and 
Germany had a dispute, until the time mentioned in the Covenant 
had elapsed, neither party should make any military preparations. 

There are two points completely overlooked: 


{ 
¢ 


THE FINAL DRAFTING COMMITTEE 393 


1. If Germany had made complete military preparations and 
France had made none, the provision would be utterly 
unfair. 

2. If the dispute were between France and Bolivia, France 
could make no military preparations no matter what Ger- 
many did. 


Such a provision would prevent our mobilizing troops on the 
Mexican border if there was a dispute between the United States 
and Siam pending before the Executive Council or before arbitra- 
tion, and of course the dispute which was submitted to arbitration 
might be utterly insignificant. 

Attention is called to the following specific changes, reference 
being to the new numbers of the Articles: 


ARTICLE III 


This has been recast without change of meaning except a 
specific provision that voting in the Body of Delegates is to be 
by States. 


ARTICLE IV 
This has been rewritten without any change of substance 
except that the last paragraph is new. 
ARTICLE VI 
It is provided that the Secretary General should be ap- 
pointed by the Council, and the provision regarding the first 
Secretary General is omitted. 
ARTICLE VII 
A provision is inserted permitting the Council to decide 
upon a Seat of the League other than that named, in order to 
insure satisfactory arrangements. 
ARTICLE VIII 
This Article has been recast without any attempt to change 
its meaning. 
ARTICLE XIV 


This Article has been rewritten in order to exclude any 
idea of compulsory arbitration and at the same time permit 
the Court of International Justice to give advisory opinions. 


ARTICLE XV 


This Article has been rewritten. It now directs a report 
by a majority of the Council in every case of dispute, but 


394 THE DRAFTING OF THE COVENANT 


does not change the provision that only a unanimous report 
in the sense in which that term is used, has any limitation on 
the action of the parties. 

The President’s amendment to this Article has been slightly ; 
recast, and, I think, somewhat extended in meaning. 


ARTICLE XX 
The provision regarding the expenses of International — 
Bureaux, etc., has been omitted. 
ARTICLE XXV 


This Article has been rewritten without change of meaning. — 


ARTICLE XXVI 


The first paragraph of this Article is new and provides for 
the formal method of the acceptance of the Covenant by in- 
vited States. : 


1 aa ae 


RECOM MENDATIONS 


1. A schedule of original members comprising certain signa-— 
tories and certain invited States, should be prepared and published — 
with the text of the Covenant. 

2. The Japanese amendment, Article xm-a, should be re-— 
jected in any form. 

3. The proposal for a Financial section, which is printed at 
the end of the text in a bracket, should be wholly rejected. It 
practically would create another Body of Delegates and would — 
arouse much feeling against the Covenant as being capitalistic. — 
Furthermore, the sole purpose of this amendment is to help M. — 
Klotz in the Chamber of Deputies. : 

4. The proposed addition of the Labor people to Article x1x 
should be rejected.1. The Labor Convention should stand on its — 
own basis, and the attempt of the Labor people to hitch their con-— 
vention to the League of Nations should be prevented. 

5. Generally speaking, any additions to the Covenant will be 
wholly objectionable, hurt its chances of success, and should be 
resisted. 

6. In view of the popular agitation, some amendment regard- 
ing the Monroe Doctrine should be incorporated. 

31 March, 1919. 


~— 


Aidit ome: 


Ae 


ie 


u 


As the foregoing memoranduni says, various amendments — 
submitted to the Drafting Committee had been taken into con-— 
sideration. Many of these had, in one form or another, been 


*See p. 306. 


THE FINAL DRAFTING COMMITTEE 395 


incorporated in the revised text; some were regarded as un- 
necessary or already sufficiently within the language; still others 
were either excluded or reserved, as the above memorandum and 
the subsequent discussion show. There were two amendments, 
however, which are not above alluded to and were not in the re- 
vised text but were left for the Drafting Committee to consider 
and include. One of these was the French proposal regarding 
Article 11 (now the second sentence of the first paragraph of that 
Article) requiring an immediate meeting of the Council in case of 
emergency. The other was the British proposal regarding Article 
13 (now the second paragraph of that Article) classifying certain 
international disputes as being “generally suitable’ for arbitra- 
tion.? 

The revised text, as Hurst and I agreed on it, left various 
questions open or “reserved.”’ One of these was the Japanese 
amendment which had been accepted by the Commission in prin- 
ciple, as Article 12a, and which our text omitted.?, While the 
idea of the Japanese proposal, namely, that there should not be 
mobilization or military preparations of the Parties while a dis- 
pute between them was pending before the Council or some tri- 

_ bunal, is on its face a very proper one, | regarded it as impossible 
_ in its application and my reasons are stated in some detail in the 
above quoted memorandum. 

During our discussion about the Japanese amendment, Article 
12a, Hurst handed me a draft of a suggested substitute for the 
| Japanese proposal reading as follows: 


The States Members of the League agree that from the time 
| when a dispute is submitted to arbitration or to inquiry by the 
| Executive Council and until the lapse of the aforesaid terms of 
three months they will not, whether parties to the dispute or not, 
proceed to the mobilization of their forces or make arrangements 
with a view to such mobilization. 


But, as I said above, I was not in favor of the idea in any 
_ form and it did not appear in the text. 

Another matter left open was the proposal for a financial 
section of the League of Nations. Cecil had brought this up on 
March 18 when he talked with House and myself. The Com- 
mission had never accepted it and I was opposed to it. Indeed, 


*These proposals weré reported by the Drafting Committee (see Document 
30) in the exact language of the Covenant in the Treaty. 
"See p. 327. 
*See p. 282 sq. 


396 THE DRAFTING OF THE COVENANT 


it had been disapproved at the meeting between Wilson and 
Cecil on March 18.1 In the text submitted by Hurst and myself 
(Document 28) it was printed in a parenthesis at the end of the 
English version. 


We also reserved a clause regarding Labor which was to add — 


to paragraph (a) of Article 19 the words: 


and to this end agree inter alia to the creation of a perma- 
nent international organization for the purpose of regulating Labor 
conditions. 


The Commission had instructed the Drafting Committee to 
take this matter into consideration.” My objections to it were 


that it was an effort to tie up the Labor Clauses of the Treaty to 


the Covenant; I thought that they should stand on their own. 
One other question which seemed rather technical but which 
had a good deal of substance to it also, was considered and left 
open to come before the Drafting Committee, where it was much 
discussed. Article 15 provided that a dispute between Members 
of the League might go before the Council. If the Council made 
a unanimous * recommendation about it, the Parties agreed not to 


go to war if the recommendation was complied with, although — 


such a recommendation was not strictly a binding decision on 
the merits. If the Council divided so that there could be no such 
unanimous recommendation, the Parties to the dispute were not 
obliged to refrain from war. Suppose that in such a case, (a 
divided Council), one of the Parties to the dispute attacked the 
other, it seemed that other clauses of the Covenant might pre- 
vent a third Member of the League from going to the support of 
the attacked State; so the question was, should a clause be in- 
serted to cover such a case? The principle of Article 10 had a 
bearing here undoubtedly, although the language of that Article 
does not cover the point. However, I inclined to the view that 
anything further (in Article 15) was unnecessary, for it seemed 
to me difficult to envisage as concurrent facts the continued ex- 
istence of the League and such an attack by one Member on an- 
other. 

Hurst and I finished our conferences on the evening of Sun- 
day, March 30. The American printers went on during that night 
and the following day with the printing of the English text on 


*See p. 202. 


* For the form in which the proposal was before the Committee, see p. 339 sq. 


* Unanimous in a qualified sense, with the votes of the Parties not counted. 


; 
} 


THE FINAL DRAFTING COMMITTEE 397 


which we had agreed (Document 28) and a French version of it 
which was very largely the work of my office ;! while I had given 
some attention to this French version, Hurst and I hardly dis- 
cussed it at all. 

Another paper which Hurst gave me is entitled “Protocol of 
Acceptance of Membership in the League of Nations.’”’ It read 
as follows: 


The undersigned, duly authorized by their respective Govern- 
ments, after taking note of the terms of the Covenant for the 
establishment of the League of Nations which is inserted in the 
Treaty of Peace of even date, severally declare that their Govern- 
ments are desirous of establishing the League in accordance with 
the stipulations of the said Covenant, and sign this Protocol to 
establish the fact that the States they represent become members 
of the League in conformity with Article 7. 


OR He RENE ALAS) EEE ach nd hanya. sha)! e Sisco sesinaue 191g in a single 
original which shall remain deposited in the archives of the Gov- 
ernment of the French Republic, and of which a copy duly certi- 
fied shall be sent through the diplomatic channel to each of the 
signatory Powers and to the Secretary General of the League. 


soe tne, Wrnted, States of America... .. 2s ..006 esses cesses 
i UISMIMER ESE SRESNA cea 8 cae 6 we oa) Sahel Gon whe. chy | dah dimimt Swiss eae 
for the British Empire 
in respect of the United Kingdom and of the remainder 
of the British Empire not separately represented......... 
cespeEr Ot Canadas sn. BeOS 
WPeespeem@r ustrahiay.. 8) oft! 20200. 22. oR Oa 
Bie SeSPEce OE SOttM ALETICA J .50)0).2 Lie ala slain le SVU SR\ NS NSE 
mrespechioe New Zealand :)) (2! :4.uin/. chs Sek eee 
MA SESMCERIOR PETE Is 254 oss IA 2 dew onde ote dd oath. Bite bends aie 
BAe EPRICE eae wb 13, Sago 5 on oat wter's: wis fates ctal hn, solange cual as 


The significance of this draft is its showing that at this time 
the final form of the Treaty of Versailles, from a technical point 
of view, was still undetermined. It was true that the Peace Con- 
ference had decided that the Covenant should form an integral part 
of the Treaty of Peace. The theory was that ratification of the 
Treaty would make any ratifying Power except Germany a Mem- 
ber of the League; but at this stage the matter of procedure was 
not altogether clear. Not only was Germany, a Signatory to the 
Treaty, not to become a Member of the League, but it was contem- 


*I do not print the French. 


398 THE DRAFTING OF THE COVENANT 


plated that Neutral Powers, who would of course not be parties to 
the Treaty of Peace, should nevertheless adhere to the Covenant 
and become Members of the League. The Covenant, thus, while a 
part of the Treaty, was still in a sense to be a separate document 
binding three classes of Powers: Germany, which by the Treaty 
agreed to the Covenant, but did not join the League; other Signa- 
tories which were parties to the whole Treaty including the 
Covenant and thus (upon ratification) became Members of the 
League; the Invited Powers which were not bound by the Treaty, 
as a treaty, but upon accession became bound by that part of the 
Treaty which constituted the Covenant. In the final result, the 
Covenant was a document within a document, a treaty within a 
treaty; yet at the same time a separate and independent agree- 
ment, at least so far as some States were concerned. 

I do not recall any precedent even remotely similar in in- 
ternational documents. And the technical features of the situa- 
tion are all the more curious when one remembers that the Treaty 
of Versailles and the other Peace Treaties, to which the Neutrals 
were not parties at all, contained numerous references to the 
League and the Council. The Covenant is a part of three other 
Peace Treaties as well as a part of the Treaty of Versailles, al- 
though this resulted in some lack of precision in Article 5 which 
speaks of the “present Treaty” because, literally read, “present 
Treaty” would be four different Treaties. But the fact that the 
Covenant appears in the Treaties of Peace other than the Treaty 
of Versailles is not a mere formality of repetition, because China 
refused to sign or ratify the Treaty of Versailles and still signed 
and ratified the Treaty of St. Germain-en-Laye, thus becoming a 
Member of the League through that Treaty. 

Indeed the more the matter is examined, the more extraordi- 
nary it appears, for the Covenant contemplates still another class 
of Members of the League, in addition to the three mentioned 
above, namely, those admitted to membership afterwards. Some 
of those States have no relation whatever to the Treaties of Peace 
and are not even named in them, for example, the Baltic States. 
Still others are the former enemy States themselves, Austria and 
Hungary and Bulgaria and Germany, Signatories to the Peace 
Treaties, bound by the provisions of the Covenant, but not Mem- 
bers of the League until admission. Furthermore, Members may 
withdraw from the League. If a withdrawing Member was a 
Signatory to the Treaty of Versailles it remains upon withdrawal 
bound by all of that Treaty except the Covenant; at least this 


THE FINAL DRAFTING COMMITTEE 399 


would be true of any Signatory except one of the former enemy 
States which had subsequently become a Member of the League; 
the situation of such a State would perhaps be just the same in its 
relation to the Covenant as it was between ratification of the Peace 
Treaty and admission. 

Moreover, the Covenant is an entirely separate Treaty, at least 
in this sense, that it may be and has been amended and the amend- 
ment of the Covenant is a matter which concerns the Members 
of the League, as such, and not at all the Signatories of the Treaty 
of Versailles, as such, although to some extent the two are the 
same. We have seen, for example, that an amendment to the 
Covenant desired by substantially all the Members of the League 
was (for some time) completely blocked by the action of Spain, 
not a Signatory of the Treaty of Versailles, but acting as a Mem- 
ber of the Council of the League. 

But as I said, in March, 1919, just how all these technical 
matters of procedure were to work out was undetermined. 
Hurst’s draft Protocol of Acceptance contemplated the Covenant 
as a part of the Treaty. It speaks of the Covenant as being in- 
serted “in the Treaty of Peace of even date,’’ yet it provided for 
separate acceptance of membership in the League; but its coming 
into force would doubtless have depended on the ratification and 
other clauses of the Treaty; for certainly acceptance of member- 
ship in the League required parliamentary or legislative approval, 
according to the constitutional practice of many countries besides 
the United States, including the British Dominions, as the Memo- 
randum of Sir Robert Borden indicates.? 

It is to be emphasized, however, that at this stage questions of 
form were all matters for discussion. Prior to this time, no 
draft of the Covenant had contained any procedural clause re- 
garding the method by which the invited neutrals would become 
Members of the League. The draft of Hurst and myself con- 
tained such a clause as the first paragraph of Article 26, following 
my own draft clause written on March 22;? but neither the Com- 
mission nor any sub-committee had yet considered it. The 
whole question was somewhat dependent upon the form of the 
Treaty of Peace as a whole, the ratification clauses which it 
should contain and the provisions regarding its coming into 
force. These were matters to be determined later. 

The printing of the draft of Hurst and myself for the 


+See p. 362. 
® See p. 319. 


400 THE DRAFTING OF THE COVENANT 


Drafting Committee (Document 28) was finished on March 31 
and late that afternoon I discussed it with Colonel House in 
connection with the memorandum regarding it which I had pre- 
pared and which is quoted above. I told Colonel House that the 
Japanese amendment (Article 12a)! was impossible in my opinion 
and he agreed that it should go out. He also said that he was 
opposed to the Financial amendment ? as I was and that it should 
not go in and further that the Labor amendment ® should be re- 
jected as there was enough in the Covenant regarding Labor 
already. 

It was at this time that the Red Cross Amendment, which is 
now Article 25 of the Covenant, was first mentioned. Colonel 
House handed me a letter to him on the matter from Mr. Henry 
P. Davison, Chairman of the Committee of Red Cross Soci- 
eties, reading as follows: 


The suggestion which Mr. Rublee will present to you comes 
formally from the Committee of Red Cross Societies, of which 
I am Chairman, and has the cordial approval of some of the leading 
specialists of the world. I am sure the suggestion will please you 
and that it will, if possible, be incorporated in the Covenant. 


This letter contained two alternative drafts in the following 
form: : 


I. 


The conservation of the public health throughout the world 
being of vital concern to every nation and essential to the fullest 
enjoyment of the blessings of peace, the principle of international 
cooperation through the action of national Red Cross organizations — 
to the end of securing better conditions of health is hereby ap- — 
proved and the high contracting parties agree to encourage and 
promote the establishment of such cooperation. 


2. 


The high contracting parties hereby declare that the betterment — 
of the health and physical welfare of mankind is a matter of 
general concern among all nations and essential to the fullest 
enjoyment of the blessings of peace, and each of the parties hereto 
undertakes that in addition to governmental and other appropri- 
ate agencies for work in this field in the respective countries it 


* Quoted at p. 392. 
* See pp. 394, 395 sq. 
* See p. 396. 


THE FINAL DRAFTING COMMITTEE 401 


will sanction and encourage as a voluntary organization the estab- 
lishment and operation of a National Red Cross organization with 
the exclusive right to the use of the sign of the red cross and with 
authority to carry on such voluntary work as may be appropriate 
and within the limits of its resources for the improvement of 
public health and for the restriction and prevention of disease, 
and mitigating suffering caused thereby, as well as by famine, 
fire, floods and similar calamities; furthermore, the National Red 
Cross organizations shall be authorized to combine with each 
other in an International Red Cross League to work together for 
the purpose of bringing within the reach of all mankind the 
knowledge and assistance and advantages which the progress of 
science and education and the material resources in each country 
may be able to contribute for the benefit of all. 

The high contracting parties further declare that the activities 
and interests of the International Red Cross League must be wholly 
non-political and non-governmental, but they agree to facilitate 
so far as is appropriate the work undertaken by the International 
Red Cross League for the purposes above set forth. 


Colonel House asked me what I thought of it. I told him that 
I thought well of the idea, though I did not believe in loading 
down the Covenant with extraneous things. It was my view at 
the time that every additional clause involved a possibility of op- 
position or criticism and that mostly additions were unnecessary. 
Furthermore, the shorter the Covenant could be kept, the better. 
The proposed Financial clause is a good illustration of the sound- 
ness of this view. Harmless enough in itself perhaps, in the 
British form, it would probably have been misrepresented as hav- 
ing some relation to the Interallied Debts in accordance with the 
French hope regarding them; and events have shown that it was 
utterly unnecessary, for without any financial clause in the Cov- 
enant, the League was able to bring about the rehabilitation of 
Austrian and Hungarian finances and to prepare in fact, though 
not in name, the Dawes Plan. The general welfare clauses 
of the Covenant were sufficient to permit the work of Sir Arthur 
Salter, just as they were sufficient to permit the work of Nansen, 
of Morgenthau and of Howland. 

However, the Red Cross was rather in a class by itself as an 
international organization. For fifty vears and more it had 
worked with extraordinary success and the beneficence of its 
purposes had met with world-wide recognition. Under the cir- 
cumstances, I thought that a clause regarding the Red Cross in the 
Covenant might be of advantage, although it is interesting to re- 


402 THE DRAFTING OF THE COVENANT 


call that various American statesmen of the 1870s or thereabouts 
opposed American cooperation with the Red Cross as an “en- 
tangling alliance’ or even because of the Monroe Doctrine!? I 
thought, however, that even the shorter of Mr. Rublee’s drafts 
was too long and I recast the proposal as an additional clause (f) 
of Article 19 as follows: 


(£) will encourage and promote the establishment and co- 
operation of voluntary national Red Cross organizations having 
for their purpose the improvement of public health, the pre- 
vention of disease and the mitigation of suffering throughout the 
world. 


The Drafting Committee reported to the Commission on the 
League of Nations the text of the Covenant in English only. 
The final form of this text as reported is Document 30. 

The Drafting Committee held three meetings, on the morning 
and afternoon of April 1 and on the afternoon of April 2; the 
meetings were held at the Hotel Astoria and there were present 
as members of the Committee, Lord Robert Cecil, M. Larnaude, 
M. Veniselos and myself (in place of Colonel House). There 
were also present Mr. F. L. Warrin Jr. as my assistant and for the 
British, Mr. Hurst, Mr. Philip Baker and Major J. R. M. Butler; 
and for the French, M.M. Clauzel, de Lapradelle and de Sillac. 

The French laid before the Committee a suggested rearrange- 
ment of the Articles in more logical order as follows :? 


PREAMBLE 
I 
Composition de la Société, admission, sorte. 
, Articles 1, 24 (§2) et 26. 
II 
Organes, siege, procédure. 
Articles'2)'2) 4G Ong lenies: 
III 
Reégles destinées a assurer le maintien de la paix. 
Articles 8 a 17 inclus. 
IV 


Régime des traités. 
Articles 21, 22, 23. 


*See Life of Clara Barton, by W. E. Barton, vol. ii. pp. 137, 150. 
? The Article numbers here are those of Document 28. 


THE FINAL DRAFTING COMMITTEE 403 


Vv 


Administration des intéréts internationaux. 
Articles 18, 19, 20. 


VI 
Dispositions diverses. 


VII 


Revision du Pacte. 
Article 24 (§1). 


The British submitted to the Committee a detailed paper of 
proposed changes (Document 29), some very trivial, a few of 
more importance; there were included in this paper in one form or 
another various amendments which the Commission had accepted 
in principle, two of which had not been included in the revision 
made by Hurst and myself;' the most interesting of all the 
British proposals perhaps was to substitute “Assembly” for “Body 
of Delegates.”” This was the first time that this suggestion had 
appeared” and the Committee accepted it. Indeed, most of these 
British suggestions went into the Committee text. It may be noted 
here that the references in this British paper to Article numbers, 
text etc. are to the Hurst-Miller revision (Document 28) which 
was, indeed, the basis of discussion by the Drafting Committee. 

The proceedings of the Commission at its three March meet- 
ings were of course before the Drafting Committee. Those pro- 
ceedings had changed the February 14 text considerably and, as 
I mentioned above,* an attempt had been made to incorporate these 
changes so as to show to the Drafting Committee the text as it 
stood at the close of March 26 (Document 27). However, that 
draft could not, or at least did not, incorporate all the various 
references to the Drafting Committee; neither were all these 
references * included in the Hurst-Miller revision (Document 28) ; 
but they were all before the Drafting Committee and were all 
considered. 

What the Drafting Committee did was to go over the English 
text word by word; using the revision of Hurst and myself (Docu- 
ment 28) as a basis, changing it some and incorporating generally 
the drafting changes contained in the British suggestions (Docu- 

; See p. 395 sq. 

I suppose it was suggested by the phrase in French “Assemblée des 
Délégués.” 

*See p. 352 sq. 


404 THE DRAFTING OF THE COVENANT 


ment 29), the Committee agreed on the new text, discussing at 
length only two or three proposals which require special mention. 

The first meeting of the Drafting Committee on the morn- 
ing of April 1 got through Article 11. The afternoon meeting 
was a short one; it did not commence till four o’clock; Hurst 
was not present and during the consideration of Article 15 we 
had to adjourn on account of an engagement of Larnaude. 

The Committee had a great deal of difficulty with Article 15. 
The question was what clause, if any, should be put in to pro- 
vide for a case of non-unanimous report by the Council regarding 
an international dispute. One British draft written out during 
the meeting, was this: 


If the Council fail to make a unanimous recommendation, the 
members of the League reserve the right to take such action in 
support of the opinion of the majority as they may think fit. 


After this afternoon meeting, I talked with Cecil for a while 
about various matters. We discussed Article 10, which he did 
not like and which I defended. We also talked about our diffi- 
culty with Article 15. I drew up an amendment then, which 
I showed to Cecil thus: 


If the report is not unanimous in the said sense, the members 
of the League shall have complete liberty of action. 


Cecil said it was his idea, but “brutally put” and then he wrote 
out the same idea in other language: 


If the report is not unanimous, the provisions of this Article 
shall have no further effect. 


We left Article 15 for further consideration. I showed Cecil 
the proposed amendments of Mr. Root which I have quoted and 
discussed above.” Cecil did not like them at all; he went so far 
as to say that he would rather have no Covenant than have one 
with those amendments. 

The next day I had some further talk with Cecil about Article 
15. Cecil came to the conclusion that both the proposals as to 
Article 15 which are printed in the British suggestions (Document 
29) should be embodied in the text. However, what the Com- 


*See p. 306. 
*p. 377 sqq. 


q 


a 


THE FINAL DRAFTING COMMITTEE 405 


mittee finally did that afternoon was to pass both amendments ! 
back to the Commission on the League of Nations, printing 
them again in parenthesis (as will be seen from Document 30) 
so as to show that they were brought forward by the Committee. 

That afternoon the Drafting Committee finished its work and 
got through the English text. The only question particularly 
discussed, other than Article 15, was the so-called Swiss amend- 
ment, requiring the request of the Council for the passage of 
troops pursuant to Article 16. The text of this may be seen in 
Document 29. I opposed this amendment and the committee re- 
jected it, Larnaude taking my view. I shall discuss this proposal 
and my views of it in detail elsewhere.* 

One change which was made by the Drafting Committee was 
the addition of this entirely new paragraph in Article 16: 


Any Member of the League which has violated any covenant 
of the League may be declared to be no longer a Member of the 
League by a vote of the Council concurred in by the representa- 
tives of all the other Members of the League represented thereon. 


Article 14, regarding the Permanent Court of International 
Justice, reached its final form at these meetings of the Drafting 
Committee. In the account of the proceedings of the Commis- 
sion at its Twelfth Meeting on March 24 the action taken by 
the Commission on this Article was discussed in detail; and I 
have shown above * how this Article was written in the revision 
of Hurst and myself. 

The first sentence of the Hurst-Miller revision before the 
Committee read: 


The Council shall formulate plans for the establishment of a 
Permanent Court of International Justice. 


Substantially in accordance with the British suggestion (Docu- 
ment 29) this sentence was changed so as to read: 


The Council shall formulate and submit to the Members of 
the League for adoption plans for the establishment of a Perma- 
nent Court of International Justice. 


* With a verbal change of “shall” to “should” in the first amendment. 
? See Chapter xxxI. 

* See p. 328 sqq. 

“See p. 301 sqq. 


406 THE DRAFTING OF THE COVENANT 


The change made it clear that the establishment of a Court 
was to be the subject of a separate Treaty. Then followed the 
words : 


The Court shall be competent to hear and determine any dis- ~ 
pute of an international character which the parties thereto submit 
to it. | 


} 
These words were left unchanged as a separate sentence. Then © 
followed in the Hurst-Miller revision this language: t 


and also to advise upon any legal questions referred to it by the 
Council or by the Body of Delegates. 


which read in the later British suggestion: 


and also to advise upon any dispute or question referred to j 
it by the Council or by the Assembly. ; 


i 
This language the Committee changed, making it into aq 
separate sentence reading: ; 


The Court may also give an advisory opinion upon any dis-— 
pute or question referred to it by the Council or by the Assembly. — 


This change has significance. The power to give advisory 
opinions is stated separately and not as a part of the primary — 
jurisdiction of the Court. Again, the expression “advisory 
opinion”’ is used instead of the word “advise,” indicating that the 
function to be exercised is a judicial one. Finally it may be 
pointed out, as some doubt on the point has been raised, that this — 
language was unquestionably written in English before it was 
put into French at all. I repeat that the Drafting Committee re-— 
ported an English text only and this was part of that English text. ; 

The Committee had accepted in principle Larnaude’s proposal ; 
of arrangement,! leaving it to Hurst and myself to see that it 
was carried out in the print. This we did the next day (April 
3) and at the same time we adjusted some slight discrepancies — 
between the American and British notes as to the exact language © 
adopted by the Drafting Committee and made a few other trivial 
and verbal changes. 


tte 


*See p. 402 sq. ’ i 


THE FINAL DRAFTING COMMITTEE 407 


The Red Cross Article had made no trouble in the Drafting 
Committee, where it was accepted as a separate Article in the 
following language :4 


The Members of the League agree to encourage and promote 
the establishment and cooperation of duly authorized voluntary 
national Red Cross organizations having as purposes the improve- 
ment of public health, the prevention of disease and the mitiga- 
tion of suffering throughout the world. 


This differed slightly in form from my earlier draft quoted 
above,” particularly by the insertion of the words “duly author- 
ized.” The change was made because Mr. Rublee wanted the 
draft which I had made revised. He came in to see me just be- 
fore the last meeting of the Drafting Committee and suggested 
the following language: 


The States Members of the League will also encourage and 
promote the utilization and cooperation of duly recognized volun- 
tary national Red Cross organizations for the improvement of 
public health, the prevention of disease and the mitigation of suf- 
fering throughout the world. 


For some reason which was not clear to me Mr. Rublee 
thought it was of great consequence that the word “recognized” 
should be used in the Article, although it was quite inappropriate 
in connection with a voluntary Society. 

However, this matter of the Red Cross Article remained for 
a good deal of consideration after the Drafting Committee 
adopted it in the form above quoted as Article 23. It developed 
that the Red Cross officials had submitted their original lengthy 
and impossible proposals * to the British some time before March 
26 and the British Ministry of Health were quite concerned lest 
voluntary organizations like the Red Cross might be permitted 
to undertake national responsibility in health matters. Some of 


*The French text proposed at the Drafting Committee was, like the 
English, in the form of an addition to Article 19 (which became 22, see Docu- 
ment 30) and read as follows: 

Ajoutez a l’Article x1x: 

(f£) encourageront et favoriseront l’éstablissement et la coopéra- 
tion des organizations volontaires nationales de la Croix Rouge, diment 
autorisées et ayant pour objets l’amélioration de la santé publique, les 
mesures preventives contre la maladie et le secours aux souffrances 
dans le monde entier. 

* At p. 402. 

*See p. 400 sqq. 


408 THE DRAFTING OF THE COVENANT 


the British correspondence between Sir Michael Delevingne and 
Sir George Newman was laid before me and, on April 5, Major 
Astor, who had come over from London for the purpose, came 
to see me with Mr. Philip Baker regarding this Red Cross amend- — 
ment. They thought that the Article went too far and might be 
claimed to take governmental matters out of the control of the © 
Governments. They proposed a redraft which read as follows: 


The Members of the League agree to take steps for the im- 
provement of the health of their peoples, the prevention of disease 
and the mitigation of suffering throughout the world, and to pro- 
mote for these purposes joint action in matters of international 
concern between the several national Governments. To this end 
they will also encourage and promote the establishment and co- 
operation of duly authorized national Red Cross and other organi- 
zations for the above purposes. 


To this I objected as going rather farther than the Red 
Cross amendment as it then stood in the direction to which the 
British objected, namely, non-governmental control of matters 
of public health, an objection with which I had every sympathy. 
Accordingly I suggested in place of the British redraft to strike 
out the word “public’’ from the text of the Red Cross Article, 
which was accepted. The British then requested that there should — 
be added a paragraph (f) to Article 22 which we finally agreed 
on as follows: 


(£) will endeavour to take steps in matters of international 
concern for the prevention and control of disease. 


Finally the British wanted the position of the Red Cross 
Article changed so that it would be Article 24 instead of 23 and 
I agreed to this, not seeing that the transposition could make any 
possible difference. These changes were accepted by Cecil and 
Hurst and the text of the Drafting Committee (which had al- 
ready been printed) was reprinted in accordance with the changes. 
This final text from the Drafting Committee is Document 30. 

It was on April 3 that Hurst and I had gone over the 
Covenant together to make up the text as the Drafting Committee 
had adopted it, with the changes and rearrangement ! which I have 
mentioned above, but of course without the subsequent changes 
in connection with the Red Cross Article. This text ? was finally 

*For a note on the Numbering of the Covenant Articles, see p. 469 sqq. 


"Except for what may be called the Red Cross changes, this text is exactly 
the same as Document 30. 


~ 


: 
: 
| 
| 


| 


THE FINAL DRAFTING COM MITTEE 409 


printed on the evening of April 3 and the next morning copies 
were sent to Hurst and also to Larnaude and Veniselos. At the 
same time I sent to Hurst some copies of a draft of the Annex 
to the Covenant which I had gotten up at his request. This, I 
think, was the first draft of an Annex which was printed and as 
will be seen it was very similar to the Annex to the Covenant 
in the Treaty of Versailles: 


ANNEX TO THE COVENANT 
I. SIGNATORIES 


ORIGINAL MEMBERS OF THE LEAGUE OF NATIONS 


United States of America. Guatemala. 
Belgium. Haiti. 
Bolivia. Hedjaz. 
Brazil. Honduras. 
British Empire ; Italy. 
Australia, Japan. 
Canada, Liberia. 
India, Nicaragua. 
New Zealand, Panama. 
South Africa. Peru. 
China. Poland. 
Cuba. Portugal. 
Czecho-Slovakia. Roumania. 
Ecuador. Serbia. 
France. Siam. 
Greece. Uruguay. 


II. STATES NOT SIGNATORIES 


INVITED TO ACCEDE TO THE COVENANT 


Argentine Republic. Persia. 
Chili. Salvador. 
Colombia. Spain. 
Denmark. Sweden. 
Netherlands. Switzerland. 
Norway. Venezuela. 
Paraguay. 


III. THE SECRETARY GENERAL OF THE LEAGUE 
[name to be inserted] 


On the previous day (April 3) I had prepared for Colonel 
House this cable to Senator Hitchcock to give him a summary 


410 


THE DRAFTING OF THE COVENANT 


of the principal changes in the text of the Covenant since the 
draft of February 14: 


After meetings of the Neutrals and subsequent meetings of 
the Commission on the League of Nations, the Drafting Commit- 
tee of that Commission has prepared its report of a new draft of 


the Covenant. The most important changes and additions follow: — 


(1) The Executive Council is called Council. 


(2) 
(3) 


(4) 


(5) 
(6) 


(7) 


(8) 
(9) 


(10) 


(11) 


The Body of Delegates is called Assembly. | 
The provisions have been rearranged and generally 
redrafted. 

Regarding the Body of Delegates there is the follow- — 
ing provision: ; 
“At meetings of the Assembly, voting shall be by — 
States; each Member of the League shall have one — 
vote, and may have not more than three Representa- — 
tives.” 
There is a provision similar to (4) as to the Council — 
except that each State has only one Representative. 
There is the following provision in Article v: 
“Except where otherwise expressly provided in this 
Covenant, decisions at any meeting of the Assembly 
or of the Council shall require the agreement of all — 
the states represented at the meeting.” ; 
There is the following provision in Article vir: Q 
“All positions under or in connection with the League, 
including the Secretariat, shall be open equally to 
men and women.” 

Article x is unchanged. 

There is a specific provision in Article xv that in — 
the event of a report of the Council which is not ~ 
unanimous in the sense there mentioned, the Members ~ 
of the League reserve the right to take such action — 
as they consider necessary for the maintenance of — 
right and justice. 
There is a provision in old Article xIx, now XxXI, 
second paragraph, after the word “responsible,” as — 
follows: “and who are willing to accept it.” 
Article 1 contains the following provision: 
“Any Member of the League may, after two years’ ~ 
notice of its intention so to do, withdraw from the r| 
League, provided that all its international obligations — 
and all its obligations under this Covenant shall have b 
been fulfilled at the time of its withdrawal.” | 


a 


THE FINAL DRAFTING COMMITTEE Ait 


(12) Article xv contains the following provision: 
“If the dispute between the parties is claimed by one 
of them, and is found by the Council, to arise out 
of a matter which by international law is solely within 
the domestic jurisdiction of that party, the Council 
shall so report, and shall make no recommendation 
as to its settlement.” 

This report of the Drafting Committee has not been presented 
to the Commission which meets t on April 8 and accordingly must 
to some extent be regarded as tentative. 

A provision regarding the Monroe Doctrine has not yet been 
inserted. 


I also prepared for President Wilson and sent to him on 
April 4 a memorandum on the Drafting Committee text. This 
memorandum, differing from the Hitchcock cable, was intended 
to show the changes in the text sent to the Drafting Committee 
(Document 27) and the text returned by the Drafting Com- 
mittee (Document 30) : 


The order of the articles and paragraphs has to some extent 
been changed. 


The word “Council” has been substituted for “Executive Coun- 
cil,’ and the word “Assembly” has been substituted for “Body 
of Delegates.” 

ARTICLE I 


The first and third paragraphs of this article were formerly 
Article vu. 


The fourth paragraph of this article was formerly the second 
paragraph of Article xxiv. 
The second paragraph of this article is new. 
ARTICLE II 


This article was formerly Article 1. Recast. 


ARTICLE III 
This article was formerly Article 11. Recast. 


ARTICLE IV 


This article was formerly Article m1. The last paragraph is 
new, corresponding to a similar paragraph regarding the Assembly, 
in Article 11. 


*The Commission did not meet until April ro. 


412 THE DRAFTING OF THE COVENANT 


ARTICLE V 


This article was formerly Article tv. 


ARTICLE VI 


This article was formerly Article v, omitting the provision 
regarding the Seat of the League. 


ARTICLE VII 


This article incorporates former Article v1 and includes also 
a provision regarding the Seat of the League and former Article 
XXV. 

Articles vi1l to Xvi, inclusive, have the same numbers as 
formerly. 


ARTICLE VIII 


ze 
~ ey 


This article has been changed in form but, it is believed, not in 
substance. 
ARTICLE IX 
There is no change except that due to the renumbering of the 
articles. 
ARTICLE X 


This article is unchanged from the former draft. 


ARTICLE XI 


In the last sentence of the first paragraph will be found incor- 
porated the French amendment. 


ee eee eee eee 


ARTICLE XII 


ae, = 


The changes in the language and the omissions are in accordance 
with the action of the Commission, 


__ 


ARTICLE XII-A 


This article is printed in brackets as the Drafting Committee 
will recommend its reconsideration by the Commission. 


— a 


——————— ss 


ARTICLE XIII 


An enumeration of certain disputes which are generally — 
deemed justiciable is contained in the second sentence of the first 
paragraph. 

There is also inserted in this article an express covenant against 
going to war. 


THE FINAL DRAFTING COMMITTEE 413 


ARTICLE XIV 
A clause is added permitting the Court to give an advisory 
opinion, and the language has been recast so as to obviate any 
suggestion of compulsory arbitration. 
ARTICLE XV 


This article has been recast. Two substantive amendments 
which will be proposed by the Drafting Committee are printed in 
brackets. 

The American amendment is now the seventh paragraph of 
the article and has been very slightly changed in verbiage, making 
it probably somewhat broader in meaning. 

The last paragraph of this article incorporates the Greek 
amendment. 


ARTICLE XVI 


The last paragraph of this article is new. 


ARTICLE XVII 


The changes made are verbal. 


ARTICLE XVIII 


This article was formerly Article xxi with some verbal 
changes. 


ARTICLE XIX 


This article was formerly Article xx1r and has been very 
slightly changed. 


ARTICLE XX 


This article was formerly Article xx. There are a few 
drafting changes. 


ARTICLE XXI 


This article is former Article xv111 without substantial change. 


ARTICLE XXII + 


This article is in substance former Article x1x with a slight 
change in the language in the first paragraph and with an addition 
to paragraph (a). 

ARTICLE XXIII 


This article is new and was proposed by Colonel House. 


*The further addition to this article, and the slight change in the next 
(Red Cross) article, which became xxiv, Article xxiv becoming xxIuII, 
have been mentioned at p. 407 sg., These changes were made on April 5 and 
Mr. Wilson was informed of them by letter on the same date. 


414 


This article is former Article xx with some drafting changes. 


THE DRAFTING OF THE COVENANT 


ARTICLE XXIV 


ARTICLE XXV 


This article was formerly the first paragraph of Article xxrv. 


About the same time the text of the following report of the 
Drafting Committee regarding Article 12a, the Japanese amend- 
ment, came in from Cecil and this of course was sent up to Wil- 
son also: 


SUGGESTED MEMORANDUM ON THE PROPOSED ARTICLE XII-A 


Circulated to the Drafting Committee 


At its 12th meeting, the Commission adopted the following 


amendment proposed by the Japanese Delegation: 


“From the time a dispute is submitted to arbitration or to 


enquiry by the Executive Council, and until the lapse of the 
aforesaid term of 3 months, the parties to the dispute shall 
refrain from making any military preparations.” 


Although this amendment was adopted by the Commission, 


the Drafting Committee feel that the objections to it are so strong 
that the question of its insertion in the Covenant should be recon- 
sidered. The objections are set out as follows: 


1. To forbid preparations during the moratorium is to encour- 


age secret preparations previously. Such secret preparations 
will have been made by a nation that meditates aggression, 
but not by a peaceful nation. To forbid preparations dur- 
ing the moratorium would therefore benefit the intending 
aggressor, and damage the innocent party. 


. It would be impossible to distinguish between immediate 


preparation for war and the continual preparation for war 
in which the normal training of the fighting services con- 
sists. An unscrupulous nation, itself ready for war, might 
therefore pretend that an unprepared nation which took the 
smallest step to organize its powers of self defence during 
the moratorium had broken the Covenant, and might make 
this a pretext for attacking it. 


. Article vim already provides that the limits of armaments 


proposed by the Council and adopted by the several Govern- 
ments shall not be exceeded without the concurrence of the 
Council. This provision covers the period of the mora- 
torium, and goes as far as seems desirable. 


ae ee 


THE FINAL DRAFTING COMMITTEE 415 


In short, the effect of forbidding military preparations during 
the moratorium is to stimulate preparations for war in peace, and 
to benefit the deliberate aggressor. 


The British also prepared this Note on the Drafting Com- 
mittee text, which was circulated by the Secretariat on April 7 
to the members of the Commission along with the Committee 
report on Article 12a: 


NOTE BY THE BRITISH DELEGATION ON THE REDRAFT 
SUBMITTED BY THE DRAFTING COMMITTEE 


Article 1. This Article is a redraft of the old Article vu; 
as directed by the Commission it now contains the necessary pro- 
visions to admit of the adherence of the Neutrals. It also con- 
tains the amendment allowing a State to withdraw from the League 
on giving 2 years’ notice. 

Article 11 (old Article 1) and throughout the Covenant “Coun- 
cil” has been substituted for “Executive Council,” and “Assembly” 
for “Body of Delegates,” as being more accurate terms. 

Article 111 (old Article 11). The arrangement of this article 
has been altered; there is no change of substance, except to state 
clearly that the Assembly may deal with any matter affecting the 
peace of the world. 

Article tv (old Article tr). The redraft makes clearer the 
distinction between permanent and non-permanent members of the 
Council, and the fact that any addition to either class requires 
approval of the majority of the Assembly. 

In the 5th paragraph, it is made clear that States specially in- 
vited shall only sit as members during the discussion of the mat- 
ters specially interesting them. 

The last paragraph limits the number of representatives on the 
Council to one per State, for reasons of practical convenience. 

Article v (old Article 1v). No change. 

Article v1 (old Article v). The redraft embodies the amend- 
ment giving the actual right to elect the Secretary General to the 
Assembly. The mention of the Seat of the League is transferred 
to Article viz. 

Article vit (old Article v1). The amendment declaring the 
equal eligibility of men and women for service on the Secre- 
tariat and other bodies under the League is inserted as part of this 
Article. 

Article vimr. The redraft embodies the amendment providing 
that the scheme for disarmament shall be liable to revision at least 
every 10 years. There are no other changes, except in the matter 
of wording and arrangement. 


416 THE DRAFTING OF THE COVENANT 


Article 1x. The redraft embodies the amendment substituting 
“Council” for “League,” and including a reference to Article 1 
(previously Article vir). 

Article x. No change. 

Article x1. The amendment adopted by the Commission has 
been inserted, instructing the Secretary General to summon a meet- 
ing of the Council on the request of any member of the League, in 
case of emergency. 

Article xu. This Article has been reworded in accordance 
with a more logical arrangement, and shortened by the omission of 
the last clause of the last paragraph, the provisions of which now 
find their place in Articles x11 and xv. 

Article xita. A Memorandum by the Drafting Committee on 
the subject of this Article, which was adopted by the Commission, 
is circulated herewith. 

Article x1. A clause, provisionally adopted by the Com- 
mission, has been inserted, declaring that certain classes of inter- 
national disputes are, among others, generally suitable for arbitra- 
tion, 

This amendment goes some way to meet the opinion, widely 
and strongly held in England and the leading Neutral Countries, 
that the provisions of the Covenant with regard to the settlement 
of disputes by arbitral process are not sufficiently progressive. 
It has been largely argued that the provisions of the Covenant as 
originally published were, in this particular direction, actually re- 
trogressive as not sufficiently recognizing the distinction evolved 
in recent years between justiciable and non-justiciable disputes. 

Article xiv. The amendment adopted by the Commission 
giving the Council and the Assembly power to refer any dispute 
to the Permanent Court for advice, has been inserted. 

This power will be indispensable for the settlement of some 
classes of disputes; but of course the opinion of the Court will 
have no force or effect unless confirmed by the Report of the 
Council or Assembly. It therefore in no way introduces the prin- 
ciple of obligatory arbitration. 

Article xv. Apart from purely drafting amendments, the 
following alterations are made in the redraft: 

(1) A clause (printed in brackets) has been provisionally in- 
serted in paragraph 5, instructing the Council to consider what 
steps, if any, shall be taken to enforce its unanimous recommenda- 
tion in the case in which one of the parties to a dispute, while not 
going to war against the recommendation, yet fails to comply 
with it. 

The reinsertion of such a clause seems essential if the unani- 
mous recommendation of the Council is not to be less effective 
than an arbitral award; in which case a State which knew it was 


THE FINAL DRAFTING COMMITTEE 417 


in the wrong would always elect to go before the Council rather 
than before arbitrators, as the decision of the former could 
not be enforced while that of the latter could. This would be a 
most unfortunate result, as it is desirable to encourage a resort 
to arbitration whenever possible. 

(2) Another clause (printed in brackets) has been provision- 
ally inserted as paragraph 6, by which, in the event of the Council 
failing to arrive at a unanimous decision, the members reserve 
complete liberty of action. 

This amendment recognizes the right of States, in the last 
resort, to take up arms on behalf of the party which they believe 
to be the victim of aggression, whether their opinion is shared 
by the majority of the Council or not. This recognition is really 
in the interests of international justice, and, as a matter of fact, 
it only gives the sanction of the Covenant to what would probably 
take place. 

(3) The amendment adopted by the Commission excluding 
from the competence of the Council any dispute found by it to 
arise out of a matter solely within the domestic jurisdiction of one 
of the parties has been inserted. 

(4) The amendment adopted by the Commission providing that 
a report by the Assembly, if concurred in by all the States repre- 
sented on the Council and a simple majority of the other States, 
shall have the force of a unanimous report by the Council, has 
been inserted. 


Article xvi. A new final paragraph has been inserted to 
meet the case of a State which after breaking its Covenant still 
claims to vote on the Council or in the Assembly. 

Article xvi1. No change of substance. 

Articles xvii-xx (old Articles xx-xx11t). No change of 
substance. 

Article xxz (old Article xvi11). No change of substance, 
except that the amendment providing that no state shall be com- 
pelled to accept a Mandate has been inserted. 

Article xxm (old Article xtx). This Article has been re- 
drafted so as 


(1) to make it plain that the States of the League are only 
bound to the extent of such conventions as they may have agreed 
to with regard to the matters mentioned. 

(2) to give the organization to be set up by the Labour Con- 
vention the prestige of mention in the Covenant in accordance with 
the desire of the Labour Commission. 

(3) to make specific mention of the treatment of natives, 
the White Slave and Opium Traffics, and the prevention of dis- 
ease. 


418 THE DRAFTING OF THE COVENANT 


Article xx11t (old Article xx). The redraft allows for the 
inclusion of existing and future international organizations under 
the direction of the League. Further, the sphere of possible use- 
fulness of the Secretariat is given a wider scope by the wording 
of the redraft, and the Council is empowered to include the ex- 
penses of any bureau or commission under the direction of the 
League in those of the Secretariat. 

Article xxiv. This Article is inserted to facilitate coopera- 
tion between the various national Red Cross bodies. 

Article xxv (old Article xxiv, first paragraph.) The re- 
draft embodies the amendment by which only a simple majority 
of the Assembly is required, in addition to the unanimous approval 
of the Council, for amendments to the Covenant. 


A few days were to elapse before the Report of the Drafting 
Committee was to be considered by the Commission on the 
League of Nations, which held its Fourteenth Meeting on April 
10. So far as the Drafting Committee was concerned, its work 
was finished. We had prepared a definitive text of the Covenant 
(Document 30); even a tentative Annex had been drafted. It 
had been supposed, by myself at least and I think by others, that 
the Drafting Committee would also bring in a French text; but 
this took another course as will be told more fully later.1 

Aside from the question of the French text, one other mat- 
ter remained to be determined. Most of the American criticisms 
had been met by amendments drafted in line with the views of 
the critics; withdrawal, domestic questions, unanimity in the 
Council and in the Assembly, and the rather absurd idea that a 
country might be compelled to accept a Mandate, had all been 
covered. Article 10 remained unchanged despite the criticisms; 
but here Mr. Wilson was unwilling to modify his position. 
There was left, however, the Monroe Doctrine question; the 
Drafting Committee had had nothing to do with this for no 
amendment covering the point had yet been submitted. Wilson 
was determined to present such an amendment in some form; 
he had prepared one draft and had withheld it for the time; he 
wanted if possible first to have the British assent to it in form 
as well as in substance. The negotiations of the next few days 
which relate to this matter, so far as I am familiar with them, 
will be told in the next Chapter. 


*See p. 5II sqq. 


CHAPTER XXX 
A PROPOSED NAVAL AGREEMENT 


On April 9, I received various papers relating to the question 
of a naval agreement between the United States and Great 
Britain. One of these was this letter from Lord Robert Cecil to 
Colonel House dated April 8: 


British DELEGATION 


Paris 


April 8, 1919. 
Confidential 


My Dear CoLonet House: 


I have found in exalted quarters that some of the recent utter- 
ances by high officials connected with the United States Navy 
have produced a very unfortunate impression. Very possibly they 
have been misunderstood, but they have in fact conveyed the idea 
that the naval policy of America is one of expansion; that the 
American ambition is to have a navy at least as strong or stronger 
than that of the British Empire, and so on. It is urged with some 
force that such an attitude is wholly inconsistent with the concep- 
tion of the League of Nations, and that if it really represents the 
settled policy of the United States it could only lead sooner or 
later to a competition in arms between us and them. To inaugu- 
rate the League of Nations by a competition in armaments be- 
tween its two chief supporters would doom it to complete sterility 
or worse. I cannot help feeling that there is a great deal of force 
in this contention, and I do believe that in some way or another 
the impression I have tried to describe ought to be removed if the 
League is to have a fair start. The position is undoubtedly com- 
plicated by the British sentiment about sea power. It has been 
now for centuries past an article of faith with every British states- 
man that the safety of the country depends upon her ability to 
maintain her sea defence, and like all deep-rooted popular senti- 
ments it is founded on truth. Not only have we dominions scat- 
tered over the face of the world, each of which requires protection 
from the sea, but the teeming population of the islands of the 
United Kingdom can only be fed and clothed provided the avenues 


419 


420 THE DRAFTING OF THE COVENANT 


of sea traffic are safe. We import four-fifths of our cereals, two- 
thirds of our meat, the whole of our cotton and almost the whole 
of our wool. If we were blockaded for a month or less we should 
have to surrender at discretion. That is not true of any other 
country in the world to the same extent. Least of all is it true of 
the United States, which could, as far as necessaries of life are 
concerned, laugh at any blockade. 

I think you will believe me when I say that I am passionately 
desirous of Anglo-American friendship, and a convinced believer 
in its existence and durability, but I must freely admit that if I 
were British Minister of the Navy and I saw that British naval 


safety was being threatened, even by America, I should have to © 


recommend to my fellow countrymen to spend their last shilling 
in bringing our fleet up to the point which I was advised was neces- 
sary for safety. I do not of course ask you to accept these views, 
but I do ask you to recognize their existence. I do not know 
whether in your country you have any traditional policy around 
which popular sentiment has crystallized in a similar way, but if 


you have you will be able to appreciate the kind of British feeling ~ 


that exists on this point. 

You have sometimes been good enough to invite me to speak 
to you frankly as I would to one of my own countrymen, and in 
that spirit I venture to ask you whether you could do anything to 
reassure us on this point. Would it be possible, for instance, for 
you to say that when the Treaty of Peace containing the League of 
Nations has been signed you would abandon or modify your naval 
programme? I am sure that the British Government would be 
only too ready to give corresponding assurances. That would be 
what the French call a “beau geste” with which to inaugurate the 
League; and if you could also intimate, however informally, that 
the two governments would consult together from year to year as 
to their naval programmes, and that the British sentiment on the 
matter would not be disregarded I feel confident that the present 
very genuine anxieties on the point could be completely removed. 

Yours very sincerely, 
Ropert CECIL. 


Another was a letter from House to Lloyd George under the 
same date. This original letter, however, in the papers which I 
received, was with a note of Sir William Wiseman of the same 
date to House reading: “I enclose your letter to the P. M. and 
R. C.’s draft for your consideration,” so I think that the letter 
from House to Lloyd George, the text of which follows, had not 
been delivered and that perhaps it was not delivered at all, being 
replaced by the letter finally written to Cecil by House, mention 
of which is made hereafter : 


t 


A PROPOSED NAVAL AGREEMENT 421 


COMMISSIONER PLENIPOTENTIARY OF THE UNITED STATES 
oF AMERICA 


Paris, 8 April 1919 
Dear PRIME MINISTER: 

_When I asked you yesterday what, if any, objection you had to 
the clause which I submitted regarding an affirmation of the 
Monroe Doctrine, you told me as you have told me before, that 
you could not consent without first coming to an agreement with 
the United States regarding our naval building programme. I 
cannot see what connection the two matters have. If the kind of 
peace is made for which we are working and which will include a 
League of Nations it will be necessary for us all to live up to its 
spirit and to do this it will be inconsistent to continue to increase 
armaments either by land or sea. Therefore it seems that your 
doubts answer themselves and to reach the objective you have in 
mind it is only necessary to put into force as soon as possible a 
League of Nations. To do this it may be essential that specific 
reference be made to the Monroe Doctrine, otherwise there is 
danger that the Senate of the United States may reject it. I 
understand that no one but you has raised any objection to our 
proposal, and I hope, my dear Prime Minister, that you will not 
further insist upon the point you have raised. 

Sincerely yours, 
E. M. House. 


THE RigHT HONORABLE 
D. Lioyp Georce, M. P. 
23 Rue Nirort, Paris 


While I am not familiar with the details of earlier negotia- 
tions between Lloyd George and House, there is no doubt that 
they had been going on for some time. On March 7 at a meeting 

_ between Lloyd George, Clemenceau and House the British Prime 
Minister proposed 


that a share of the German Fleet should be handed over to 
France to recoup her for her losses and for the cessation of naval 
construction imposed on France by the War. The British and 
American shares would be sunk in some manner to be arranged 
simultaneously in Mid-Atlantic as part of an Anglo-American 
understanding about naval armaments ; 


and on March 10 at a similar meeting Lloyd George spoke of the 
sinking of the ships and the necessity for an agreement between 
England and America not to rival each other in naval building. 


422 THE DRAFTING OF THE COVENANT 


The draft of “R. C.,” mentioned in Wiseman’s note, which 
was in Cecil’s handwriting, was for a letter, or rather for part of 
a letter, to be written by House to Cecil in answer to the letter of 
April 8 above quoted: 


Many thanks for your letter with the spirit of which I.am in 
hearty agreement. Indeed, I have already written to Mr. Lloyd 
George, who had spoken to me on the subject, that once the League 
of Nations was part of the treaty of peace it will be necessary for 
all of us to live up to its spirit and to do this it will be inconsistent 
to continue to increase armaments either by land or sea. That is 
as I have ascertained also the view of the President. In the same 
way it will be part of our duty under the Covenant to interchange 
information as to our naval programmes and I should hope that in 
the case of America and England that obligation will be carried 
out in cordial cooperation. You will not forget in this connection — 
the recognition by the President of Great Britain’s special position 
as to sea power. 


My instructions were to prepare a draft answer to the letter 
of Cecil with a memorandum on our Naval Appropriation bills 
and an expression of my own views. These were prepared at 
once and were submitted to House that afternoon. What I wrote 
about the Naval Appropriation bills was this: 


The Act of August 29, 1916, provided for the following con- 
struction, “prior to July first, nineteen hundred and nineteen”: 


Battleships « 2)... 2.0. ./0,. i: <2 «sie 10 
Battle cruisers \..).2 0). ss .0 » ss 6 
Scout cruisers, i). 6.0/4. des - +5), sais 10 
Of these there were “to be begun as soon as practicable,” 
Battleships \.0000. .\02 0. 2001.0  r 4 
Battle cruisers )....!.)) )5022:. 5). 2): ee 4 
Scout cruisers ..0000.00 02 1.2. 2 4 


The Act of March 4, 1917, provided that of the foregoing ves- 
sels authorized construction of the following should be “begun as 
soon as practicable” : 


Battleships, o).(.5/./02 |. 4 ke dh le  de tel r 3 
Battle. ertaisers 5 2.014)... ;0!< ws joi ae I 
Scout Craisers ). 4. j.k ane a he ae 3 
It will be observed that this left for construction the following : 
Battleships: si). 0208 ss Abe se eae a 
Battle cruisers oily ee on k hase ee I 


SCOUt CHUISETS |.) Hs eR ae 3 


————————— 


A PROPOSED NAVAL AGREEMENT 423 


As to these the Act of July 1, 1918, which is the Naval Appropria- 
tion Act for the year ending June 30, 1919, provided that, 


The construction which has not heretofore been specifically 
directed to be begun shall be begun as soon as practicable, but 
not later than June thirtieth, nineteen hundred and nineteen. 


The Naval Appropriation Act for the coming fiscal year failed 
at the last session and will come up again at the extra session. 

I am, of course, not familiar with what has been actually done 
under the Appropriation Acts from whose very elaborate provi- 
sions I have quoted very briefly and without alluding to the con- 
struction of other types of vessels. 


With that memorandum was the following statement of 
opinion : 

My own view is this: 

The result of the war, the enormous increase of the British 
fleet and the ending of the German fleet has created a situation 
where the British naval strength is out of all proportion to any 
question of defence. That strength is now greater than the 
strength of all the other navies of the world together. 

Such a situation is the result of events, not of design, but it is 
not healthy as a permanent condition in the world and should be 
changed, and the British should be told so plainly. 

American sentiment must be considered. To say: ‘We do not 
need as large a navy as Great Britain” may be accepted. To say: 
“The United States cannot be allowed to build as large a navy as 
Great Britain” would not go down with our people. 


The draft which I wrote as an answer to Cecil from House is 
from one point of view not very material as it was not the letter 
which was sent. However, as it embodied my understanding of 
the ideas which House intended to convey, I reproduce it here: 


It is with great pleasure that I have read your note of April 8, 
expressing in some detail the desire of the British Government for 
an understanding with the United States as to naval programmes. 

This desire was mentioned ito me by the Prime Minister when 
he said to me that he could not consent to the clause which I had 
submitted regarding an affirmation of the Monroe Doctrine with- 
out first coming to an agreement with the United States regarding 
our naval programme. 

I have been unable to see any connection between the two mat- 
ters. If the kind of peace is made for which we are working and 
which includes a League of Nations, it will be necessary for us to 
live up to its spirit, and to do this none of us can consistently con- 
tinue to increase our armaments either by land or sea. Therefore, 


424 THE DRAFTING OF THE COVENANT 


it is essential that we put in force as soon as possible a League of 
Nations, and as the Monroe Doctrine is a traditional policy of the 
United States around which popular sentiment has crystallized, 
specific reference to it in the Covenant may be necessary in order 
to avoid the danger that the Senate of the United States might re- — 
ject the Covenant. 

With your thought that a competition in armaments between — 
the United States and Great Britain should be avoided I am in the 
most cordial accord. The present naval programme of the United 
States was originated by the Naval Appropriation Act of August 
29, 1916, from which I venture to quote the following paragraph: 


“If at any time before the construction authorized by this 
Act shall have been contracted for, there shall have been estab- 
lished, with the cooperation of the United States of America, 
an international tribunal or tribunals competent to secure peace- 
ful determinations of all international disputes, and which shall 
render unnecessary the maintenance of competitive armaments, 
then and in that case such naval expenditures as may be incon- — 
sistent with the engagements made in the establishment of such 
tribunal or tribunals may be suspended, when so ordered by 
the President of the United States.” 


While any modification of this programme, so far as it has not 
been actually commenced, is a question for Congress, that question — 
will come up for consideration at the approaching extra session, as 
the Naval Appropriation bill for the coming fiscal year has not 
been passed. 

With the corresponding assurances which you are sure that 
the British Government would be only too ready to give, I feel that 
it would be our policy to modify our programme so far as it re- 
lates to the future. 

It also seems to me that in view of the provision in the Cove- 
nant for an interchange of information regarding naval pro- 
grammes, the two governments would naturally and properly, 
from year to year, consult regarding them, taking into account 
the British sentiment on the matter and also, I may add, American 
sentiment. 

I have read this letter to the President and it has his approval. 


When I saw House in the afternoon he told me that he had 
changed my draft letter to Cecil because he wanted to limit only 
our future naval program. He said he had written the letter ac- — 
cordingly, which he showed me. I do not have a copy of it and 
can quote only its opening phrases: 


Thank you for your letter of April 8th with the spirit of 
which I am in cordial agreement. If the kind of peace is made for 


— 


—— 


A PROPOSED NAVAL AGREEMENT 425 


which we are working and which will include a League of Nations, 
it will surely be necessary for us to live up to its intentions and 
in order to do this I am sure you will find the United States 
TOACY is! 1! «5 


I did not think that the letter as drafted by House was en- 
tirely clear in one respect and at his request I wrote an addi- 
tional clause so as to make it explicit that it did not apply to any 
part of our naval program except that commencing with the 
next Naval Bill and thereafter. 

The next day (April 10) I was informed that House’s an- 
swer to Cecil had been taken up to the President on the previous 
evening, that the President had approved it and that the letter 
had been delivered. 

That afternoon I saw Colonel House at 2:30. I told him 
that I had an appointment with Cecil at 3:30. He said that Cecil 
had told him that morning that the letter that he (House) had 
written about the naval program was not satisfactory to Lloyd 
George. House told Cecil that the two questions of the insertion 
of the Monroe Doctrine clause and the naval program had noth- 
ing to do with each other and that he would take the position that 
he had taken in everything over here; that the United States was 
not going to bargain but was going to take the position it believed 
to be right ; that these were the instructions he had given to every- 
body when the question of bargaining had been brought up; that 
he did not want the letter on the naval program back, because it 
represented the policy of the United States;'that the American 
amendment on the Monroe Doctrine would be presented at to- 
night’s session, and the British could oppose it if they saw fit. 
He said that Cecil was very much impressed by what he said and 
seemed very much upset, and had said that he was disposed to 
quit the whole thing. House told him that the matter was too 
important for him to leave, that he (Cecil) was one of the few 
available rafts floating in the sea that could be used at all. 

After referring to other matters, House said that I might 
mention the Monroe Doctrine amendment to Cecil as a matter 
of drafting. He handed me the amendment in the form in 
which he said it was to be proposed as follows: 


ARTICLE X (a) 


Nothing in this Covenant shall be deemed to affect the validity 
of international engagements such as treaties of arbitration or re- 


426 THE DRAFTING OF THE COVENANT 


gional understandings like the Monroe Doctrine for securing the 
maintenance of peace. 


This was the first time that I had seen this exact draft + which 
differed greatly from the draft Wilson had originally written.” 
I was not consulted as to its language. 

When I saw Cecil we discussed various questions and I then 
spoke of the position of the Monroe Doctrine amendment which 
would be moved that night. I said I thought it should not go 
under Article 10. Cecil agreed that it should be a separate 
Article but he thought it should be next to the last Article. [ do 
not mean that Cecil agreed to the amendment, for we only dis- 
cussed its position if it should be adopted. 

I returned to see Colonel House and reported to him my con- — 
versation with Cecil telling him that we had not discussed the 
Monroe Doctrine amendment except as above mentioned. House 
spoke of the naval question and while we were talking a note came 
in from Cecil with the memorandum which he was sending to the 
Prime Minister of his talk with House. Colonel House read 
the note and handed the papers to me and I read them out loud. © 
The memorandum was perhaps the equivalent of one legal page ; 
of typewriting. It described the conversation between Cecil ? 
and House that morning. According to the memorandum House ~ 
said that our naval program had been authorized a good while — 
ago; that if it had not been for the delay caused by building a — 
large number of small ships, destroyers, etc., it would all have 

| 


been commenced by this time; that it had to a large extent either 
been commenced or contracts had been let; having been author- 
ized by Congress it was very doubtful if the President had any ~ 
say about it now. Cecil asked if the ships which had not actu- — 
ally been commenced might not be delayed until after the sig- — 
nature of the Treaty of Peace and House said that he would see © 
what could be done about that. Cecil said that the remarks of — 
Admiral Benson to the effect that we must have as large a navy 
as Great Britain had produced a bad impression; to which House ~ 
replied that remarks made by some of the British naval officers 
had been equally unfortunate in their saying that now is the — 
time to defeat America before her navy is too large. House 
said that it was very difficult to reach a proper understanding 
with the feeling in the two services, and he thought that con-— 


" 
*Cf. the somewhat similar draft handed me by Wiseman on March 25 ; 
quoted p. 3306. . 


* See p. 322. 


A PROPOSED NAVAL AGREEMENT 427 


versations about the size of the fleets should be commenced 
after the Peace Treaty, and that some relative figures of 
strength should be agreed upon. 

House said that he would suggest that the reference to Ad- 
miral Benson be taken out, and I suggested that the words 
“American naval officers’ be inserted. He then instructed 
Auchincloss to telephone Cecil to that effect; Auchincloss re- 
ported that Cecil said that a copy of the paper had gone to the 
Prime Minister, but he would have the language changed for 
the record. 

That evening at the Fourteenth Meeting of the Commission 
on the League of Nations the Monroe Doctrine amendment was 
offered and passed. 


CHAPTER XXXI 
THE SWISS AMENDMENT 


THE proposal called the Swiss Amendment was to insert a 
few words in the third paragraph of Article 16, the Sanctions 
Article,’ so that it would read as follows, the amendment being in 
italics : 


The Members of the League agree that . . . on the request of 
the Council they will take the necessary steps to afford passage 


OE 


through their territory to the forces of any of the Members of the — 
League which are co-operating to protect the covenants of the — 


League. 


The amendment was general in its terms. It would have ap- 
plied to every Member of the League. The effect of it was this: 


In the event of the application of the sanctions of Article 16, — 


any Member of the League would have a veto on the passage of 
armed forces of another Member, whether naval, military or air, 
through or across its territory; for the Council, in making the 
request, must act unanimously; and if not already a Member of 
the Council, the State whose territory was in question would be 
a member of the Council ad hoc under the provision which is 
now the fifth paragraph of Article 4. 

The amendment was called the Swiss Amendment because 
it was put forward on behalf of the Swiss Delegation at Paris 
with the idea of permitting Switzerland to join the League, with 
part, at least, of her policy of neutrality preserved. The British 
always supported the proposal.” 

The Swiss were heartily in favor of the policy of a League of 
Nations. This was a very natural point of view for a small 
country to take; but perhaps among all small countries, it was 
most peculiarly appropriate for Switzerland in view of her past 
history. Furthermore, the Swiss were very desirous of having 


the Seat of the League established at Geneva; but in connection ~ 


* See the discussion of this Article at the meeting with the Neutral Powers 
on March 21 (Document 25). : ; 
>See Document 29, the British suggestions before the Drafting Committee. 


428 


THE SWISS AMENDMENT 429 


with the League of Nations there was a vital policy of Switzer- 
land involved, vital at least from the point of view of the Swiss 
people. For a century past, Switzerland had not only been a 
neutral State, but notably the neutral State of the world. A 
policy of neutrality seemed as natural for Switzerland since 1815 
as the ideas of liberty and of democracy had seemed to be in- 
herent in the soil of the country and in the souls of her people for 
some centuries before that. 

I have already quoted the Swiss Memorandum regarding the 
Covenant of February 14 in which allusion to the Swiss policy 
had been made;? but earlier than this, under date of (probably) 
February 8, the Swiss had submitted the following paper en- 
titled “ Memorandum Concerning the Neutrality of Switzerland,” 
which is an authoritative statement of the Swiss position: 


In a moment when the representatives of the Powers that are 
assembled in Paris are about to lay the foundation of a new inter- 
national organization, Switzerland wishes to put them in mind of 
the origin and nature of her neutrality. She feels herself bound, 
moreover, to lay stress on the necessity of this secular institution 
and to state the part which may be assigned to it in future. 

True to their traditional policy, the Swiss Government have 
issued, on the 4th of August, 1914, the following declaration of 
neutrality to the Powers: “By special order of the Federal As- 
sembly the Federal Council formally declares that during the war 
which is about to begin, the Swiss Confederation will maintain and 
defend with all the means it has at its disposal, the neutrality and 
the inviolability of the Swiss territory, as they have been recog- 
nized by the Treaties of 1815. Switzerland herself will observe 
the strictest neutrality towards the belligerent States.” 

The Powers have explicitly recognized the Swiss neutrality 
and the integrity of the Swiss territory has been respected. 

In protecting her frontiers as long as the war lasted, Switzer- 
land has conscientiously kept her word which she had freely given 
in 1815 and which forbids her, except in cases of legitimate de- 
fence, to take part in any war. 

The Confederation is entitled to lay stress on the not occasional 
but permanent character of the Swiss neutrality. Its policy of 
peace grows from a principle which has been set up as a maxim 
of State since the beginning of the xvith century. The Swiss 
who for causes which were not their own have spilt their blood on 
all the battlefields of Europe, nevertheless adopted and maintained 
the neutrality as the guiding principle of their own policy. They 


* See p. 303 sqq. 


430 THE DRAFTING OF THE COVENANT 


have laid down this principle in the constitution of their federal 
State. The declaration of the Federal Council of August 4, 1914, 
is nothing but a repetition of a great number of identical decisions 
which were reached by the federal Diets in the course of four 
centuries. The Swiss have therefore been the first of all peoples 
to proclaim their standard of a loftier policy which is destined to 
be triumphant in the system of the League of Nations. This 
systematical policy of peace is unequalled in history. ' 

The neutrality of Switzerland does not merely consist in the 
observance of the rules of the law of nations and of international — 
conventions. It is above all the expression of the deep conviction — 
and the firm will which the Swiss people have never ceased to — 
manifest in invariable sincerity and loyalty. The Swiss could — 
never be brought to understand the necessity of abandoning the © 
maxim of their politics, the value of which has been brought home 
to them by an experience of centuries. 

The neutrality of Switzerland is entirely different from all 
other neutralities recorded by history. It is one of the most essen- — 
tial conditions of the interior peace and therefore of the inde- 
pendence of the country, that embraces so many elements which 
differ in language and in civilization. Switzerland is deeply at- 
tached to this variety, which in spite of the smallness of her terri- 
tory is the source of a particularly intense national existence. 

The maintenance of this institution which has passed through ~ 
many centuries is as indispensable to Europe as it is to Switzer- 
land herself. The powers that were assembled in Paris in 1815 
spoke the truth in declaring that the neutrality and inviolability of 
Switzerland and her independence from any foreign influence “are — 
in the real interest of the policies of whole Europe.” This declara- 
tion has retained its full value up to our days. 

Switzerland must remain in future, as she has been in the past, 
the trusty guardian of the passes of the Alps. 

In this war, like already in 1871, neutral Switzerland could 
render humanity far greater services than she could have done in 
taking part in the struggle. In virtue of her perpetual neutrality 
the International Red Cross which came to light on her territory 
could deploy its beneficent activity and recently even penetrate into 
regions that are blocked by anarchy. Equally by reason of her ~ 
neutrality Switzerland had in a moment when the relations be- — 
tween the belligerents had entirely ceased, the high privilege of 
fulfilling in the domain of charity a task which has preserved the 
world from a further aggravation of its sufferings. An island of 
peace in the midst of the storm, Switzerland could provide during 
four years for the hospitalization and repatriation of the victims 
of the war as well as for the support of prisoners and, in trans- 
mitting numberless correspondences, could knit again the precious 


ies eg ee rm 


THE SWISS AMENDMENT 431 


ties which had been brutally torn in the universal crisis. Finally, 
the Swiss Confederation was enabled by its neutrality to contribute 
to fill the gap which had been left through the rupture of the diplo- 
matic relations between the belligerents. 

Switzerland wishes a League of Nations to be created, which 
will place international relations exclusively on the bases of right 
and justice; she hopes to find in it the place that is in concordance 
with her traditions as a federal and peaceful democracy. 

Possibly the great idea of a League of Nations can only be 
realized by degrees. It can be conceived that within the system of 
the League war will for the present remain admissible in those 
cases in which all prescribed means of conciliation have led to no 
result. It might also be that the confederate League does not 
embrace from the beginning all the States which surround Switzer- 
land. In either case the maintenance of neutrality would be a 
necessity, as those circumstances would subsist from which the 
perpetual neutrality has sprung up. 

Even if, as Switzerland desires, the League of Nations suc- 
ceeds in legally and practically prohibiting war in the present sense 
of word, Switzerland must adhere to her traditional neutrality on 
account of the military executions which the League might be 
obliged to decree. In maintaining her neutrality, Switzerland 
could then render greater services to the League than in taking 
active part in military measures even if these should be directed 
against some of her neighbours. 

On one hand, she will continue to defend by her own forces 
the central fortress of Europe and to offer a secure shelter to the 
International Red Cross and the other institutions which may be 
affiliated to it. 

On the other hand, the League of Nations will have the great- 
est interest in admitting into the community of the League one or 
several States, in the inviolable territory of which the inter- 
national institutions could find a residence and therefore an at- 
mosphere of impartiality. 

By reason of her neutrality Switzerland could keep up through- 
out the centuries the tie that unites peoples of different races, 
different languages and different religions. In scrupulously fol- 
lowing this principle, the Swiss cantons were able to develop be- 
tween each other a spirit which is based on mutual respect of their 
national characteristics. Switzerland, the oldest of existing re- 
publics, would gladly offer the League the fruit of the experiences 
she has acquired in the course of several centuries in a slow and 
difficult development of her federal system. Only if Switzerland 
will remain true to her traditions and principles, she will occupy 
in the League, for the benefit of all confederate States, the place 
which is assigned to her by history. 


432 THE DRAFTING OF THE COVENANT 


From the Swiss point of view, the idea of a League of Nations 
had to be reconciled with the policy of Swiss neutrality. I 
think it is fair to say that there is quite a parallel between the 
way the average Swiss looked at their policy of neutrality and the 
way the average American who favored the League thought 
about the Monroe Doctrine. Each was a national policy which 
had very deep roots in national feelings; each had served for a 
century successfully; if the idea of the League could be worked 
out consistently with the national policy, well and good; but the 
policy came first, partly because of sentiment, partly because of 
the general idea, which is a very natural and very proper one, that 
a new principle which has not yet been tried out, should not be a- 
dopted at the expense of an old one which has been tried out suc- 
cessfully ; hence the Swiss Amendment. 

While I recognized the force of the Swiss position, I was al- 
ways opposed to the Swiss Amendment. 

Looking first at the general question of the passage of troops, 
quite apart from any point as to an exception in favor of Switzer- 
land, the argument in favor of the agreed right of passage and 
consequently against the Swiss Amendment had much to support 
it in theory. Our present-day idea of neutrality, an “attitude of 
impartiality”, as Oppenheim calls it, is of very recent date. Well 
on in the eighteenth century we find the view taken by Vattel that 
a neutral might permit the passage of troops of a belligerent 
through the neutral State.1/ Of course we now think that it is 
the duty of a neutral to remain impartial, and more or less elab- 
orate attempts have been made to state in detail by international 
agreement the rights and duties of neutrals.” 

Now, certainly in theory this neutrality of modern interna- 
tional law is ended by the Covenant so far as the Members of the 
League inter se are concerned, in the event of a war commenced 
by one of these Members contrary to the Covenant itself. I do 


*See The Law of Nations, Book 11, Chapter vi, where this subject is 
discussed. Cf. Jefferson's opinion in 1790 (Works, Federal Edition, (1905), 
vol. vi, p. 141) as to “what the answer of the President should be in case Lord 
Dorchester should apply for permission to march troops through the territory 
of the United States, from Detroit to the Mississippi”; in his opinion he said: 

“It is well enough agreed, in the laws of nations, that for a neutral 
power to give or refuse permission to the troops of either belligerent 
party to pass through their territory, is no breach of neutrality, provided 
the same refusal or permission be extended to the other party.” 

* See Conventions v and xu of the Hague of 1907 and also the Declara- 
tion of London; cf. Project 26 of the American Institute of International Law, 
reviewed by Quincy Wright in A.J.J.L. Vol. 21, p. 127. 

* See Article 10 as well as Article 16 in this regard. 


a he 


THE SWISS AMENDMENT 433 


not think that any one could deny the theoretical correctness of 
this observation, whatever may be the special situation of any 
country in connection with the carrying out of Article 16, either 
generally or in a given case. 

One of the fundamental ideas of the Covenant is that if one 
of the Members of the League resorts to war contrary to its pro- 
visions, the remaining Members of the League are not to be im- 
partial but partial; they agree to an economic blockade of the ag- 
gressor ; and since the attitude of impartiality is swept away and 
partiality becomes a duty, the theoretical argument in favor of the 
existence of the right of passage in favor of those States that 
unite against the aggressor is unanswerable. 

However, in view of the subsequent history of Article 16, and 
the difficulties that have been found to exist in any uniform and 
rigid application of its provisions, it may now be regarded as very 
doubtful whether the Swiss Amendment was of prime importance. 
The provisions of Article 16 lay down a fixed rule for the appli- 
cation of its sanctions in any given case by every Member of the 
League alike. Now there can be no doubt whatever that if and as 
any specific case shall arise, the execution of these provisions, 
regardless of their language, will have to vary greatly as among 
the Powers concerned. This was recognized by the unanimous 
resolution of the Second Assembly.t| The discussions of the 
question of the passage of troops since 1920 do not lend much sup- 
port to the view that the form of the clause giving permission for 
such passage is of essential significance. Indeed, when Ger- 
many came to make her application for membership in the League 


*The following is a portion of the resolution: 

The resolutions and proposals for amendments to Article 16 which 
have been adopted by the Assembly shall, so long as the amend- 
ments have not been put in force in the form required by the Covenant, 
constitute rules for guidance which the Assembly recommends, as a 
provisional measure, to the Council and to the members of the League 
in connection with the application of Article 16. 

Among the proposals mentioned, was to insert the following as the fourth 
paragraph of Article 16: 

Nevertheless, the Council may, in the case of particular members, 
postpone the coming into force of any of these measures for a specified 
period where it is satisfied that such a postponement will facilitate the 
attainment of the object of the measures referred to in the preceding 
paragraph, or that it is necessary in order to minimize the loss and 
inconvenience which will be caused to such members. 

? During the Polish-Lithuanian dispute in 1921 when an international force 
was dispatched to Vilna for the purpose of supervising a plebiscite, Switzer- 
land refused passage across her territory to this force. See Minutes of the 
12th Session of the Council, pp. 21-22; 42; 96; also Records of the 2nd As- 
sembly, 1921 pp. 98-90. 


434 THE DRAFTING OF THE COVENANT 


the special situation of that country, created by the Treaty of 
Versailles in regard to armaments, caused her to raise questions 
regarding Article 16 somewhat analogous to those suggested by 
Switzerland, though having a very different origin and purpose. 

Now, considering the matter from the point of view of an ex- 
ception in favor of Switzerland, the argument, in the light of the 
present, is, I think, all one way or at least overwhelmingly in 
favor of the exception. While my view in 1919 was the other 
way, I have no hesitation in saying now that I think that the con- 
trary view of Cecil was the right one. I was influenced by the 
fear that any exception would mean more exceptions; in the 
clause which I had drafted for the accession of neutral States I 
had been careful to put in the words “without reservation.” 1 I 
also felt convinced, as I have previously mentioned, that any ad- 
ditions to the Covenant at the time tended to require explanation 
and arouse opposition. 

I discussed the matter of the Swiss Amendment frequently 
and at length with M. Rappard of the Swiss Delegation. On 
April 1 he mentioned to me the desire of the Swiss to be able to 
object to free passage of troops over their territory in the event 
of a war, there being under Article 16 of the Covenant a specific 
consent in advance to such passage. The following day when I 
went to see Cecil, Rappard was there. I spoke with very great 
frankness about Swiss neutrality and suggested, I thought some- 
what to Cecil’s surprise and regret, that the obligation of the 
Powers to guarantee Swiss neutrality was inconsistent with the 
Covenant and accordingly would be an obligation from which 
(under Article 20) they would have to attempt to withdraw. 
Rappard spoke of the political consequences in Switzerland of the 
abandonment of neutrality and I mentioned in reply the political 
consequences in the United States of having to say that we might 
send troops to Europe in certain contingencies and that regard- 
less of the military necessity of defeating the enemy, any small 
Power in the League of Nations in Europe could refuse to per- 
mit troops to cross its territory. 

It was on that afternoon (April 2) at the meeting of the 
Drafting Committee, that I opposed the inclusion of the Swiss 
Amendment in the text; and after this meeting, I specifically 
mentioned to Colonel House my opposition to the Swiss amend- 
ment, which he approved. So far as the Drafting Committee 
was concerned, the amendment had not heen accepted. 


*See p. 319. Cf. Covenant, Article 1. 


THE SWISS AMENDMENT 435 


Rappard, however, naturally took the matter up with House. 
I told Rappard on April 10 that I was convinced that the Swiss 
Amendment was inadvisable and definitely stated to him, in re- 
sponse to his inquiry as to whether that was the American posi- 
tion, that it was, until it was reversed by somebody higher up. 
Later on that day, House told me that he had spoken to Cecil 
about the Swiss Amendment and had shown him a memorandum 
of mine against it and that Cecil thought the amendment would 
do no great harm. I asked Colonel House definitely if we were 
to recede from our position on the Swiss Amendment and he said 
yes. I confirmed this to Cecil when I saw him later that after- 
noon, telling him that I remained convinced that I was right, but 
that I understood that the decision was the other way. 

However, when the question came up at the final Meeting * of 
the Commission on the League of Nations on April 11, the 
amendment was proposed and rejected. Wilson was against it 
and was supported by the French. 

While the Swiss Amendment, as an amendment, had failed of 
adoption in the Covenant text, further efforts were made to obtain 
some sort of a declaration which might take its place. Cecil 
wrote a note to House suggesting that President Wilson in the 
speech that he was to make at the Plenary Session of the Peace 
Conference on April 28 might refer to Swiss neutrality as being 
within Article 21 of the Covenant, the Monroe Doctrine Article. 
Cecil discussed the matter with me on April 24. He said there 
was no question of any amendment to the Covenant and that the 
Swiss said that they could preserve their neutrality although 
breaking relations with a country by virtue of the Covenant, but 
that the passage of troops was another matter for them and they 
thought that the President could make a statement that they 
came under Article 21, their neutrality being a regional under- 
standing. I told him that it seemed to me extraordinary to sup- 
pose that it would not be unneutral for a country to break re- 
lations because of a previous treaty agreement to do so. 

When I saw Colonel House the next day I told him that I 
did not think well of the President making a statement about 
the Swiss situation and I wrote this memorandum on the matter 
for the President, which House approved : 


It has been suggested that the President should make some 
allusion at the Plenary Session of the Conference on Monday next 


*See the minutes of the Fifteenth Meeting in Document 19. 


436 THE DRAFTING OF THE COVENANT 


to the neutrality of Switzerland as being continued by the provi- — 


sions of Article xx1 of the Covenant (“regional understandings 
like the Monroe Doctrine’’) so as to relieve Switzerland of some 
or all of the obligations of Article xy1. 

I submit for the following reasons no such allusion should be 
made: 


(1) There is a strong sentiment against the selection of 
Geneva as the Seat of the League, which any such state- 
ment would accentuate. 

(2) The thought that the obligations of a Member of the 
League may be lessened by Article xx1 is one which the 
President distinctly repudiated and which it would be 
very unfortunate now to revive. 

(3) Whether the obligations of Switzerland as a Member of 
the League are to be regarded as in any way less than 
those of other Members because of her history of neutral- 
ity, is open to grave doubt. 

(4) The sentiment of the Commission was decidedly against 
making any express exception in favor of Switzerland. I 
am inclined to think that no such exception exists, in 
which case no statement should be made. But even if the 
exception exists, there is no reason why the onus of such 
a statement (which will no doubt be disputed) should be 
borne by the United States. 


The President took the same view for in his speech on April 
28 he made no reference to Swiss neutrality. 

After the Plenary Session of the Conference had adopted the 
Covenant and named Sir Eric Drummond as Secretary General, 
the idea was suggested that the Swiss Government might address 
an inquiry to the Secretary General regarding its rights under 
Article 21. The matter was mentioned at a luncheon given by 
Colonel House on April 30, Cecil being among the guests. Of 
course it was impossible that the Secretary General could with 
any authority answer any such question; and there was at that 
time no League, and consequently no Council, in existence and 
could not be until the Treaty of Versailles which had not yet even 
been signed, came into force. 

The subsequent history of the question and the great import- 
ance which it had in relation to the Swiss Referendum on en- 
trance into the League have been authoritatively described else- 
where.* 


* See “L’entrée de la Suisse dans la Société des Nations,’ by W. E. Rappard, 
in Les Origines ct L’Oeuvre de la Société des Nations (Copenhagen, 1923-4). 


: 
: 


ee ee SO ae ee 


_— = 


SE es Oe ee, ee eee ee eT 


THE SWISS AMENDMENT 437 


In view of the great difficulties both of kind and of degree 
in the application and execution of the terms of Article 16, no 
one can now object, I think, to the fact that the Swiss finally ob- 
tained a recognition, in advance, of their special and peculiar sit- 
uation. Indirectly and in a very curious way, this recognition is 
to some extent granted by Article 435 of the Treaty of Versailles 
by which, although Switzerland is not a Signatory, the Parties 
“recognize the guarantees stipulated by the Treaties of 1815 

. . in favour of Switzerland, the said guarantees constitut- 
ing international obligations for the maintenance of peace.*. . .” 
Later on and more directly, the Swiss again had their situation 
specifically protected by this resolution of the Council passed Feb- 
ruary 13, 1920, on the proposal of Mr. Balfour: 


The Council of the League of Nations while affirming that the 
conception of neutrality of the Members of the League is incom- 
patible with the principle that all Members will be obliged to co- 
operate in enforcing respect for their engagements, recognizes that 
Switzerland is in a unique situation, based on a tradition of sev- 
eral centuries, which has been explicitly incorporated in the Law 
of Nations; and that the Members of the League of Nations, 
signatories of the Treaty of Versailles, have rightly recognized by 
Article 435 that the guarantees stipulated in favour of Switzer- 
land by the Treaties of 1815 and especially by the Act of No- 
vember 20th, 1815, constitute international obligations for the 
maintenance of peace. The Members of the League of Nations 
are entitled to expect that the Swiss people will not stand aside 
when the high principles of the League have to be defended. It 
is in this sense that the Council of the League has taken note of 
the declaration made by the Swiss Government in its message to 
the Federal Assembly of 4th August, 1919, and in its Memoran- 
dum of 13th January, 1920, which declarations have been con- 
firmed by the Swiss delegates at the meeting of the Council and in 

-accordance with which Switzerland recognizes and proclaims the 
duties of solidarity which membership of the League of Nations 
imposes upon her, including therein the duty of co-operating in 
such economic and financial measures as may be demanded by the 
League of Nations against a covenant-breaking State, and is pre- 
pared to make every sacrifice to defend her own territory under 
every circumstance, even during operations undertaken by the 
League of Nations, but will not be obliged to take part in any mili- 
tary action or to allow the passage of foreign troops or the prepa- 
ration of military operations within her territory. 

In accepting these declarations, the Council recognizes that the 


+Cf. Article 21 of the Covenant. 


438 THE DRAFTING OF THE COVENANT 


perpetual neutrality of Switzerland and the guarantee of the in- 
violability of her territory as incorporated in the Law of Nations, 
particularly in the Treaties and in the Act of 1815, are justified by 
the interests of general peace, and as such are compatible with the 
Covenant. 

In view of the special character of the constitution of the 
Swiss Confederation, the Council of the League of Nations is of 
opinion that notification of the Swiss declaration of accession to 
the League, based on the declaration of the Federal Assembly 
and to be carried out within two months from roth January, 1920 
(the date of the coming into force of the Covenant of the League 
of Nations), can be accepted by the other members of the League 
as the declaration required by Article 1 for admission as an orig- 
inal Member, provided that confirmation of this declaration by 
the Swiss people and Cantons be effected in the shortest possible 
time. 


One further comment may be made regarding the effect of the 
Covenant on the “conception of neutrality”, as the Council re- 
solution called it. The universal League envisaged in 1919 has 
not yet arrived and unless and until it does, the new system of 
the Covenant cannot be completely or perfectly in force. Indeed, 
with important countries outside of the League, any attempted 
ending or modification of neutrality may present difficulties of 
the gravest nature, as the discussions regarding the Protocol 
of Geneva showed. 

Under the modern theory of neutrality the neutral State has 
rights as a neutral, as well as duties. The application of the 
sanctions of Article 16, as against a State agreeing to them in ad- 
vance, is of course, subject to no legal objection by that State; 
but a State outside of the agreement may insist that, as to it, such 
application is a denial of its privileges. The theory that war, in 
some cases at least, is a crime against organized humanity which 


should be prevented by the agreed sanction of an economic block- — 


ade etc., runs up against the fact that an outside neutral may and 
doubtless would insist on the privilege of “business as usual”, 
with the resultant financial profit from that very war. 

The development of the theory of sanctions in treaties and 
in international law and practice is a matter yet largely for the 
future, in which progress will be made step by step; although it 
is doubtless true that the first and most important step was taken 
by the Covenant. 


ee 


CHAPTER XXXII 
FOURTEENTH MEETING OF THE COMMISSION 


Tue Commission on the League of Nations at its final Meet- 
ings (the Fourteenth and Fifteenth) on April 10 and 11, con- 
sidered the English text of the Covenant reported by the Draft- 
ing Committee (Document 30). 

The meeting of April 10 began at eight o’clock in the even- 
ing and continued until after midnight. At the opening of the ses- 
sion there were heard representatives of the International Coun- 
cil of Women who spoke in favor of various points raised in their 
memorial. The minutes? give an outline of these and copies of 
the Memorial in French and English were distributed to the mem- 
bers of the Commission. It seems to me unnecessary to repro- 
duce it. 

One point particularly stressed by the ladies was the question 
of suffrage; so I took occasion to write a note to Wilson men- 
tioning that equal suffrage was a principle of every plebiscite of 
the Peace Treaties. The President referred to this in his remarks. 

After this formality was over, the Commission took up the 
text of the Drafting Committee ;? as my notes show (though 
there is no mention of the Preamble in the minutes), considera- 
tion of the Preamble was postponed at the request of Baron 
Makino (who was to present the Japanese amendment later) ; 
then Articles 1 to 10 inclusive of the Committee text were 
passed without any change in language whatever. One change 
was made, but not in language, merely in the order of paragraph- 
ing. In Article 5, the position of the first two paragraphs, as 
they were reported by the Drafting Committee, was reversed. 

The minutes of this Fourteenth Meeting under the heading 
Article 2, contain a page of discussion regarding the French 
text, its differences from the English, and the appointment of Lar- 
naude and myself as a Committee on the French text. I shall 
recur to this discussion in Chapter XXXV._ I shall also consider 


*See the English minutes, Document 19. The French minutes of these last 
two meetings of the Commission I do not have. 

? Document 30. The minutes do not print this text, although saying that 
it was presented by Cecil. 


439 


440 THE DRAFTING OF THE COVENANT 


there the French text which was before these two final meet- 
ings of the Commission and which Reis at the Fifteenth Meeting — 


(April 11) called “the French translation’ (Document 36). 


At this point I refer to the matter because I do not think that — 
this debate reported in the minutes took place at the meeting of © 
April 10 at all. The minutes, in my view, are erroneous as to © 


this, for I believe that this discussion occurred at the following © 


meeting on April 11, the Fifteenth Meeting, the last meeting of 
the Commission. 

My reasons for this view are, first of all, that neither my 
notes nor my Diary for April Io say a word about this debate. 
Certainly they would have mentioned a matter which inter- 


ested me so directly; furthermore, my Diary for the next day, — 


April 11, does mention that Larnaude and I were, on that even- 


cals 


ing appointed a Committee to prepare a French text; and my 


Diary for April 11 also mentions a conversation that I had with 


Hurst during the afternoon of that day regarding a French 
text of the Covenant ;! and that conversation could not have taken © 
place as I record it if the appointment of the Committee had — 


already been made. In other words, the discussion of the French 
text recorded in the minutes of the Fourteenth Meeting took 
place at the Fifteenth Meeting of the Commission on the eve- 
ning of April 11, after this talk of mine with Hurst. 

The internal evidence of the minutes is equally strong. 
The discussion is reported under Article 2. No reason whatever 
existed for such a discussion coming up under that brief Arti- 
cle.* The natural time for the matter to be raised was either 


at the beginning of these two April meetings or at their end. 


Clearly, it was at the close of the meeting on the following eve- 
ning that all this took place and the heading, Article 2, is a slip 


for Article 26. I point out that during this debate, as it is re-— 
corded in the minutes of April 10 (the Fourteenth Meeting) — 


Bourgeois proposed an Article 26; now if we look at the minutes 
of April 11 (the Fifteenth Meeting) very near the close of the 
meeting, we find the following paragraph: 


After an exchange of views between Mr. Bourgeois, Lord 
Robert Cecil and Mr. Larnaude, it was decided that an agree-— 


ment between the English and French texts should be reached by 


a small Drafting Committee composed of both French and Eng- 


lish speaking members. 


+See p. 514 sq. , 
7It contains only 25 words in the English text. 


FOURTEENTH MEETING OF THE COMMISSION 441 


This is the point at which the discussion of the French text 
took place and what appears under Article 2 of the minutes of 
April 10 was a subsequent write-up of this “exchange of views.” 
Having a wrong heading, Article 2 instead of 26, it got out of 
place during the printing of the minutes; this printing was ob- 
viously done from the mimeographed sheets as copy, as may be 
seen from the fact that under Article 7 (minutes of the Four- 
teenth Meeting) the remarks of M. Vesnitch and also those of 
M. Veniselos are reported as “No change in roneoed text.” 
Surely this was a note on the copy or the proof which the printer 
took into the text instead of the remarks themselves. 

The only two points that were considered at any length dur- 
ing the Fourteenth Meeting of the Commission were the Seat of 
the League and the Monroe Doctrine amendment. 

When Article 7 was reached, the Report on the Seat of the 
League was made by Orlando, as chairman of the Sub-Com- 
mittee, in favor of Geneva. One paper which was on the table 
in connection with the Report of Orlando was a Note to M. Rap- 
pard on behalf of the Sub-Committee, under date of March 29, 
as follows: 


The Commission on the League of Nations has appointed a 
sub-Committee to make recommendations in regard to the Seat 
of the League. Among the places they are considering for this 
purpose is Geneva. Before the sub-Committee makes any recom- 
mendations to the Commission, it desires to ascertain whether, in 
case Geneva is recommended as the Seat, the Swiss Government 
would be prepared to place at the disposal of the League, in a 
suitable situation on the Lake of Geneva near the town of Geneva, 
to be decided by the Administration of the League, sufficient 
ground for the premises of the League and residences for its 
members and officials. It must be borne in mind that with the 
growing importance and influence of the League in the future 
international relations of the world, the Seat of the League will 
require a corresponding expansion, and that the requirements of 
the League in this respect may have to be enlarged from time 
to time. In fact in course of time a new international world capi- 
tol ? may arise, and the space requirements for the Seat may there- 
fore in time become very considerable. It is not the intention to 
put the Swiss Government to any expense, but its authority and 
good-will are required to place at the disposal of the League such 
land as may be required from time to time for the above purposes. 


*The other members were Smuts, Makino and House. 
?So typed in my copy. 


442 THE DRAFTING OF THE COVENANT 


The Swiss Government would also have to guarantee inviolability 
of territorial rights in respect of it in terms of the Covenant. 


The discussion on the Seat of the League, as the minutes 
show, was participated in by various members of the Commission, — 
but it was not very real. There was no doubt by this time that 
Geneva was to be selected. Naturally enough, the claim of 
Brussels was still insisted on by Hymans and a Belgian Note © 
on the matter was submitted which is set out in the minutes,? 
although there called a “speech”. However, no other delegates, © 
except the French, directly supported Brussels. The Committee 
report was finally adopted by a vote of twelve members, the neg- 
ative not being taken. Thus, the first paragraph of Article 7 
was completed: “The Seat of the League is established at 
Geneva.” 

The real discussion of the evening came when the Monroe 
Doctrine amendment was proposed by President Wilson. The 
English text of this has been quoted above,* and also appears 
below at the opening of Mr. Wilson’s remarks. A French 
translation, which had been made in my office earlier in the day, 
and which was a part of the amendment paper before the Com- 
mission, read thus: 


Nulle disposition du present Pacte n’est considerée comme af- 
fectant les engagements internationaux tels que les traités d’arbi- 
trage ou les accords régionaux tels que la Doctrine de Monroe, qui 
assurent le maintien de la paix. 


The discussion of the Monroe Doctrine amendment is quite 
fully reported in the minutes, but the basis of the minutes was _ 
the notes of Mr. Shepardson and as these are somewhat more 
complete and are the original document, I print them here: 


President Wilson: Article x. I have an amendment to propose 
to this Article which reads as follows: 


validity of international engagements such as treaties of arbitra- 3 
tion or regional understandings like the Monroe Doctrine for 
securing the maintenance of peace.” 


M. Koo: I do not wish to be understood as opposing the in- | 
troduction of this amendment. I approve of it in principle, but | 


*The English translation in the minutes differs somewhat from the version | 
originally circulated. 
*At p. 425 sq. 


FOURTEENTH MEETING OF THE COMMISSION 443 


I should like to suggest that the Monroe Doctrine should be named 
specifically and alone in this Article and not made one of the class 
of “regional understandings.” 

M. Larnaude: Before accepting this amendment, I should like 
very much to have a clear definition of what the Monroe Doctrine 
is. Every time the liberty of Europe has been threatened, the 
United States has either acted upon the right or reserved the right 
to come to Europe in defense of her liberty. Does the United 
States amendment intend to consecrate or to change this policy? 

M. Reis: My difficulty of approving of this amendment is 
that I find no text of the Doctrine which is referred to. I, there- 
fore, cannot commit my home government to an approval of some- 
thing which is vague and unspecified. We all know of the letter 
from Jefferson to Monroe; we know that the Monroe Doctrine was 
framed to oppose the idea of the Holy Alliance going to America 
and introducing its ideas there; we know of the attitude of Presi- 
dent Grant and we know of the various interpretations which have 
been put upon the Doctrine in Pan-American meetings. I know, 
however, of no definite existing text to approve. All of us are 
glad that America decided to come to Europe and participate in 
this war, nevertheless that action of hers would seem to be rather 
contradictory to the Monroe Doctrine. 

Lord Robert Cecil: I wish to say something about this amend- 
ment, not to oppose its adoption but to explain its meaning, and 
1 would like to have my remarks recorded in the procés-verbal. 
I understand this to mean, oddly enough, exactly what it says: 


“Nothing in this Covenant shall be deemed to affect the 
validity of” various international engagements. 


It gives to these engagements no sanction or validity which they 
have not hitherto enjoyed. It accepts them as they are. And in 
particular it accepts the Monroe Doctrine as it is, a doctrine which 
has never been expressed in terms. Indeed, it is well to leave it 
undefined and as an example, because if we attempted to state it 
we might be extending or limiting its application. Yet in spite 
of the fact that it has never been definitely formulated, it would 
not be common sense to deny that such a doctrine has existed and 
has been acted upon. 

What I would understand this amendment to say is what I 
believe to be implicit in the Covenant without saying. It says 
what I believe to be true, that nothing in the Covenant interferes 
with international understandings like the Monroe Doctrine. It 
makes no understanding or alleged understanding either more valid 
or less valid. It accepts them as they are. 

M. Reis: Is there anything in the Covenant which conflicts 
with the Monroe Doctrine? Would it, for example, permit the 


444 THE DRAFTING OF THE COVENANT 


United States to go to Europe or Europe to go to the United 
States? 

President Wilson: May I answer Mr. Reis’ question in this 
way. The Covenant provides that the members of the League will 
mutually defend each other in respect of their political and their 
territorial integrity. This Covenant is therefore the highest tribute 
to the Monroe Doctrine, for it is an international extension of that 
principle by which the United States said that it would protect the 
political independence and territorial integrity of other American 
States. By it the United States served notice on the rest of the 
world that it would defend any South American country against 
political or territorial attack. 

When you try to understand what the Monroe Doctrine means, 
you should not study theoretical interpretations which have been 
placed upon it, but actions which have been taken thereunder. I 
am certain that no actions under this doctrine will be found to be 
inconsistent with the general principles of the Covenant. 

When I was in America my colleagues asked whether the ac- 
ceptance of the Covenant by America would destroy the principles 
of the Monroe Doctrine. I replied that it was nothing but a con- 
firmation and extension of the Monroe Doctrine, and explained to 
them why this was so. They then asked me if this were so, 
whether there would be any objection to making a specific state- 
ment to that effect in the text. It is by way of concession to this 
reasonable request that I am asking the Commission to state defi- 
nitely something which is already implicitly taken care of. 

M. Koo observed that as the amendment stood, the word 
“understandings” was in the plural and appeared to be too broad. 
It would cover all kinds of understandings, good, bad and indiffer- 
ent. If there were no serious objections he would like to have 
the words “regional understandings like” struck out and the word 
“of” substituted therefor. 

M. Larnaude: It seems unnecessary to make a specific men- 
tion of the Monroe Doctrine. And it seems very much out of 
harmony with the rest of the document, since it is the only refer- 
ence in the document to a particular country. 

Article 20 provides that all the States which enter the League 
are bound to make their international engagements conform to the 
spirit of the League. If they are not inconsistent, they can stand. 
If, therefore, there is nothing in the Monroe Doctrine inconsistent 
with the Covenant, it will not be affected. 

M. Reis: I should like to add at the end of President Wil- 
son’s amendment the words “so far as the Monroe Doctrine is 
not inconsistent with the League.” 

M. Larnaude: It would certainly be very unfortunate if the 
Monroe Doctrine should be interpreted to mean that the United 


ee ee eS ee 


oA eee 


ee 


: 
} 
‘ 


FOURTEENTH MEETING OF THE COMMISSION 445 


States could not participate in any settlement of European affairs 
decided upon by the League. 

M. Orlando: M. Larnaude will remember that the United 
States came to participate in this war. 

M. Larnaude: And we will never forget it. 

M. Orlando: If they came to Europe to participate in this war 
under the principles of the Monroe Doctrine, and without any 
League sanction, then more so would they come to Europe in simi- 
lar circumstances if they were members of the League. 

M. Reis: I should like permission to read the two capital sen- 
tences of President Monroe on this subject. 

President Wilson: In answer to several objections which have 
been made, I would like to point out that if, for any reason, the 
Monroe Doctrine should take a line of development inconsistent 
with the principles of the League, the League would be in a posi- 
tion to correct this tendency. If there is any feeling that the word 
“regional” is too large I am ready to strike that word out, because 
I think myself that the word “region” is perhaps hardly applicable 
to so large a territory as the Western Hemisphere. 

Lord Robert Cecil: I agree, Mr. President. 

M. Bourgeois: If this amendment is written into the Covenant 
under Article 10, will it be in conflict with Article 20? 

President Wilson: Not at all. 

M. Bourgeois: Then why put it into the Covenant? 

Lord Robert Cecil: Perhaps M. Bourgeois will permit me to 
explain again what I thought was quite clear by this time. In 
Article 5 we inserted a clause saying that the decisions of the As- 
sembly and of the Council must be unanimous unless otherwise 
provided for. 

All of us felt that there could be no question about this prin- 
ciple but there had been so much misunderstanding about it, that 
it seemed best to make a definite reference to it. Similarly this 
amendment proposes to make another implicit principle perfectly 
clear, that the validity of the Monroe Doctrine is not affected by 
anything in this Covenant. 

M. Koo: I am in complete accord with President Wilson 
and Lord Robert Cecil in wishing to have the Monroe Doctrine 
specifically mentioned here, because I believe that this doctrine has 
been tested for a century and has been found to have contributed 
greatly to the development of the ideas of liberty and peace 
throughout the world. But as to the retention of the words “re- 
gional understandings” or even “understandings,” I should like 
very much to see them omitted. Unless Lord Robert Cecil has 
some other understanding of a similar nature in mind, it would 
appear better to confine the amendment to the specific mention of 
the Monroe Doctrine. 


446 THE DRAFTING OF THE COVENANT 


As it is now worded, while it does not add anything to the 
validity of all existing understandings, it does appear to uphold 
all those which might otherwise become obsolete or fall into desue- 
tude. Besides, the present wording appears also to include any un- 
derstandings which may be made in the future of whatever nature. 
This would hardly be advisable, as one could not be sure of the 
understandings which might be made in five or ten years from 
now. For these reasons, I should like to see these words omitted 
but in case Lord Robert Cecil has some reason for still desiring 
to retain the word “understandings” then I would like to add after 
it the words “hitherto commonly accepted.” 


Lord Robert Cecil: So far as the British Empire is concerned 
there are other understandings. For example there is the ancient 
understanding concerning Arabia, and the new understanding with 
regard to the Kingdom of the Hedjaz, whereby Great Britain is 
to direct their foreign relations. 

M. Koo: Both of these will fall into the category of “hither- 
to commonly accepted understandings.” 

Lord Robert Cecil: The wording suggested by M. Koo might 
raise difficulties as to what was or was not commonly accepted. In 
this way it might question or limit the validity of existing under- 
standings. As the Article now reads it does not enlarge or de- 
tract from their validity. It gives another (?) understanding and 
(?) validity which it has not already got. 

M. Koo: I agree fully with Lord Robert Cecil so far as a refer- 
ence to the Monroe Doctrine is concerned. I should be glad to see 
it mentioned; but I should prefer to have it mentioned alone and to 
avoid use of such a broad word as “understandings.” 

Lord Robert Cecil: It would be a very dangerous and un- 
fortunate thing to state it specifically, inasmuch as the French 
Delegation has already entered its objection to this procedure. And 
I feel myself that the Monroe Doctrine should be used merely as 
an illustration and as an example of similar understandings. 

President Wilson: Any understanding which infringes upon 
the territorial integrity or political independence of any States 
would be inconsistent with the Covenant. Any State which signs 
the Covenant obligates itself immediately to abrogate such incon- 
sistent understandings. 

The inclusion of this reference to the Monroe Doctrine is in 
effect nothing but a recognition of the fact that it is not incon- 
sistent with the terms of the Covenant. 

M. Larnaude: If it is not inconsistent with the terms of the 
Covenant it seems to me very unnecessary to refer to it. 

President Wilson: I again assure M. Larnaude that if the 
United States signs this document it is solemnly obliged to render 


FOURTEENTH MEETING OF THE COMMISSION 447 


aid in European troubles when the territorial integrity of Euro- 
pean States is threatened by external aggression. 

M. Orlando: I should like to remind M. Larnaude that if 
the United States came to Europe to participate in this war and 
that such action was consistent with the Monroe Doctrine, it will 
be quite ready to come when it has accepted additional obligations 
of membership in the League. 

President Wilson: Will M. Larnaude please explain whether 
he really doubts whether the United States will live up to its obli- 
gations if it becomes a signatory to the Covenant of the League? 

M. Larnaude: My only question is with regard to the signifi- 
cance of the Monroe Doctrine. I think that it should be definitely 
expressed in words. 

President Wilson: I think that it is completely explained. 

M. Bourgeois: If this amendment is introduced there will be 
two separate groups of States under the Covenant, the United 
States on the one hand and the European States on the other. 

President Wilson: We certainly hope that other States of the 
American Continent, like Brazil, for example will come in at once. 
More than that we anticipate that practically all the States in the 
world will become members. In such a world League it seems 
out of place to talk about two groups. 

Lord Robert Cecil: I think, Mr. President, that I see what 
is troubling the French Delegation. This amendment has been 
introduced as an addition to Article 10, the Article which they be- 
lieve to be of the greatest importance to France. They are prob- 
ably troubled because they fear that your amendment may limit 
the protection which is afforded by Article 10. If you were will- 
ing, for example, that it should be placed under Article 20, I think 
that their misapprehensions would be taken care of. 


President Wilson: I am quite willing to have it go in under 
Article 20. 

M. Larnaude: Yes, put it at the end of Article 20 and add an 
explanation by way of a footnote which should be part of the 
Covenant which states exactly what the Monroe Doctrine is. 

(General objections from the Commission to M. Larnaude’s 
suggestion. ) 

M. Vesnitch: As far as an explanation of the Monroe Doc- 
trine is concerned it seems to me that it is clearly divided into two 
parts: The first part looks toward the protection of American 
States; the second part looks toward the abstention of America 
from European affairs. I do not think it can be questioned that 
the first part of the doctrine is its essence and that the second part 
of the doctrine is anything but a corollary of the first. The best 
evidence of this interpretation is in the fact that the United States 


448 THE DRAFTING OF THE COVENANT 


did participate in this great European settlement in spite of the 
Monroe Doctrine. 

President Wilson: I think it might be helpful for the dis- 
cussion if I should give something of the history which lies be- 
hind the Monroe Doctrine. At a time when the world was in the 
grip of absolutism, one of the two or three then free States of 
Europe suggested to the United States that they should take some 
political step to guard against the spread of absolutism to the 
American Continent. Acting upon this suggestion, the principles 
of the Monroe Doctrine were laid down, and from that day to this 
proved a successful barrier against the insinuation of absolutism 
into North and South America. 

The question now arises, whether you are going to penalize 
the United States for her adoption of this policy, when you are 
engaged upon the drafting of a document which is the logical, 
historical extension of the Monroe Doctrine to the whole world. — 
A hundred years ago we said, “the absolutism of Europe shall not 
come to the American Continent,” and we preserved that principle 
through all these years. Then there came a time when the liberty 
of Europe was threatened by the spectre of a new absolutism. 
America came and came gladly to help in the preservation of Euro- 
pean liberty. America was proud to come in such a cause. 

Are you now going to debate this issue, are we going to 
scruple on words when the United States is ready to sign a Cove- 
nant which makes her forever a part of the movement for liberty? 
This is not a little thing, this is a great thing. Gentlemen, you 
cannot afford to deprive America of the privilege of joining with 
you in this movement. 

M. Koo: I should be glad if after the word “understandings” 
the following phrase could be added: “which are not inconsistent 
with the terms hereof like the Monroe Doctrine.” 

Lord Robert Cecil: This addition seems to be wholly un- 
necessary and rather redundant, inasmuch as the meaning of the 
words suggested by M. Koo is already implied. 

M. Koo: The main purpose of this amendment, as I under- 
stand it, is to mention the Monroe Doctrine in the Covenant. If 
so, the amendment which I propose, though already implied, would 
make the meaning still clearer, and it would add further prestige 
to the Monroe Doctrine by thus characterizing it. 

President Wilson: I agree with Lord Robert Cecil that this 
additional phrase is unnecessary, because the effect of Article 20 
is to abrogate the understandings which are inconsistent with the 
terms of the Covenant. 

M. Larnaude: I have no doubt that the United States would 
come again to the aid of Europe if it were threatened by abso- 
lutism. The question, however, is, whether the United States 


FOURTEENTH MEETING OF THE COMMISSION 449 


would come as quickly to our help if we should happen to be in a 
struggle with a country quite as liberal as our own. 

Lord Robert Cecil: M. Larnaude is clearly wrong in his inter- 
pretation of the way in which the Monroe Doctrine has been ap- 
plied. I think that if he will consult diplomatic history he will 
find that the Monroe Doctrine has never in a single instance been 
in effect as a guide of the policy of American participation in 
Europe, but always with regard to European interference in 
American affairs. When American statesmen or international 
lawyers make any objection to the interference of America in 
European affairs they never have done it on the basis of the Mon- 
roe Doctrine, but always on the basis of Washington’s Farewell 
Address. 

President Wilson: Is it conceivable that M. Larnaude wants 
the United States to say that she will not repudiate her obliga- 
tions ? 

M. Reis: If this is the explanation of the Monroe Doctrine 
then I am ready to approve of this inclusion. 

President Wilson: If the article is accepted by the Commis- 
sion, a logical place can be found for it in the text. 

The amendment was then adopted. 

Baron Makino reserved the right to raise other questions under 
Article 10 at the next meeting of the Commission. 


As will be seen from this account, the British accepted the 
Monroe Doctrine amendment and were opposed to any attempt to 
define the Monroe Doctrine in terms, saying: “If we attempted 
to state it, we might be extending or limiting its application.” 

The French objections to the amendment, expressed prin- 
cipally by M. Larnaude, were not very serious; the French 
Government never had any idea of insisting on them. From the 
American point of view, they simply caused irritation because 
they seemed captious and to be presented with the idea of making 
some kind of a bargain for their withdrawal. Their only result 
at this meeting was to change the position of the amendment; 
it had been proposed as Article 10-a, and thus the reference to 
the Monroe Doctrine seemed to be in connection with Article Io. 
So Cecil suggested that it should be placed under Article 20, to 
which President Wilson made no objection, saying that if the 
Article was accepted a logical place could be found for it in the 
text. 

The argument of Mr. Koo was along different lines and was 
based on entirely different considerations. He had no objection 
whatever to the mention of the Monroe Doctrine; but he did not 


450 THE DRAFTING OF THE COVENANT 


want that Doctrine mentioned with other unnamed regional 
understandings, thinking of course of the Chinese situation in 
general. Koo wanted to omit “regional understandings” or at 
least “regional,” and at one time during the discussion the word 
“regional” was struck out, both President Wilson and Cecil 
agreeing; but finally the amendment was adopted without any 
change in its language. 

It is to be noticed that the Japanese said nothing at all dur- 
ing the debate, although when it was over, Baron Makino re- 
served the right to raise other questions under Article 10 at the 
next meeting of the Commission. 

The account above quoted does not give a realistic idea of the 
final remarks of President Wilson on his amendment. They 
constituted perhaps the most impressive speech I ever heard. 
For quite a while President Wilson had sat silent, listening to 
the European comments on the Monroe Doctrine, particularly 
those of the French. He became very much stirred and a sign 
of his agitation was that his lower lip commenced to quiver. 
Finally and just about midnight, there was a pause; he got up 
and made his speech about American policy for the past century 
in words which literally seemed to cast a spell over those present. 


It was of course entirely extemporaneous, a sort of verbal magic, — 


and I think that no one present got it down. Later on that night, 
when I went back to my hotel to get some dinner, I dictated 


from memory my own summary, a very imperfect one, of what _ 


he said: 


A century ago when the nations of Europe were powerless 
before absolutism, the United States declared that that system 
should not prevail in the Western Hemisphere. That declaration 
was the first international charter of human liberty and the real 
forerunner of the League of Nations. In this last war against 
absolutism in Europe and which brought about the fall of abso- 
lutism throughout the world, the United States took part in ac- 
cordance with those principles of liberty laid down a century ago. 
Is she to be denied recognition of the fact that she was first in the 
field? Is there to be withheld from her the small gift of a few 
words which only state the fact that her policy for the past cen- 
tury has been devoted to principles of liberty and independence 
which are to be consecrated in this document as a perpetual charter 
for all the world? 


My notes on this Fourteenth Meeting are little more than a 
record of the action taken, so I do not reproduce them. There 


\ 
ee 


> Se rt ee ae 


FOURTEENTH MEETING OF THE COMMISSION 45! 


were, however, various other papers on the Commission table 
which should be mentioned. One of them was a Note from the 
Swedish Delegation dated April 7 suggesting the task of formu- 
lating the plan for the Permanent Court be entrusted to the 
Assembly instead of the Council. This is called Annex 2 in the 
minutes of the Fifteenth Meeting of April 11, but as no Annexes 
are with those minutes, I print the note here: 


La Délégation Suédoise a la Conférence des Neutres serait 
reconnaissante a la Commission pour la Société des Nations de 
vouloir bien prendre en considération encore une fois, la question 
de savoir s'il ne serait pas possible de modifier l’art. xiv du 
projet de Pacte, en vue de confier a l’Assemblée des Délégués et 
non au Conseil Exécutif le soin d’arréter le plan de création de la 
Cour Internationale Permanente. 

Si nous nous permettons de revenir de nouveau a cette ques- 
tion c’est que nous considérons de la plus haute importance aussi 
bien dans les relations internationales que dans celles qui réglent 
la jurisprudence nationale, que dans les organes auxquels est con- 
fiée la haute mission de rendre la justice, soient exempts de l’ombre 
méme du soupcon de se laisser guider par des considérations 
d’ordre politique. Dans notre opinion ce résultat serait plus facile- 
ment atteint si l’organisation de la Cour Internationale était con- 
fiée a l’Assemblée des Délégués. 

Veuillez agréer, Monsieur le Président, l’expression de notre 
profond respect. 


Another was a resolution regarding an Organization Com- 
mittee. This was to come up at the next meeting of the Com- 
mission. I had drafted the resolution at the request of House 
that afternoon and the text of it which he had approved was as 
follows: 


Resolved that the President be requested to invite seven 
Powers, including two neutrals, to name representatives on a 
Committee 

A. To prepare plans for the organization of the League. 

B. To prepare plans for the establishment of the Seat of the 

League. 

C. To prepare plans and the Agenda for the first meeting of 

the Assembly. 

The Committee shall report both to the Council and to the 
Assembly. 


452 THE DRAFTING OF THE COVENANT 


When the resolution was prepared, House suggested that 


Cecil might present it. It is interesting to recall as an illustra-— 


tion of how the best laid schemes of men miscarry that the idea 
at this time was that the first meeting of the Assembly would take 
place in Washington in October, 19109. 

There was also a French projet regarding objects of histori- 
cal interest in mandated areas and in Turkey. This proposal 
was also for the final meeting; it is mentioned in the minutes 


of that meeting as Annex 3, proposed as an amendment to Arti-— 


cle 21 by Bourgeois. While the Annex itself is not with the 
minutes, the proposal will be found as a footnote in Document 109. 


Finally I mention a British memorandum on discrepan- — 


cies between the English and French texts of the Covenant. I 
shall refer to this later in connection with my discussion of the 
French text. ? 


*?See Chapter xxxv, especially p. 512 sqq. 


CHAPTER XXXIII 
FINAL MEETING OF THE COMMISSION 


Mr. Koo remained unconvinced about the language of the 
Monroe Doctrine Article. On the morning of April 11 House 
told me to see him and fix up his doubts as to the language if I 
could. I told House that while I did not think that the language 
included an “Asiatic Monroe Doctrine,” I did think that Japan 
would contend that such was the effect. In the afternoon Koo 
came in and talked with me about the Monroe Doctrine amend- 
ment. I urged on him that the amendment as it stood was favor- 
able to China and that even the word “regional” should be in- 
cluded, particularly in view of the fact that the amendment con- 
templated subsequent understandings. I suggested to him that he 
examine the diplomatic correspondence for some years past be- 
tween China and the United States so as to see whether this 
amendment did not really give China a good deal of protection. 
I also urged upon him the view that the Covenant as a whole, 
although the matter had not been particularly discussed publicly 
or otherwise, really affected the Far East in a more serious way 
than any other portion of the world. Koo argued in favor of 
adding some such words as these: “Understandings which are not 
in conflict with the Covenant”. I pointed out to him that this 
would simply be going around a circle, to say that the Covenant 
did not affect anything that was consistent with the Covenant. 
He seemed impressed with my argument, but not wholly con- 
vinced. 

Just before the evening meeting of the Commission, I went 
over to see House, and reported to him this conversation with 
Koo. House asked what should be done about the Monroe Doc- 
trine amendment at the meeting that night; should it come 
up for discussion or be treated as adopted? I said it was adopted 
and should be treated as adopted, and the French would not 
claim that it was not; but what they would do would be to offer 
an amendment in connection with Article 20, which was in fact 
what happened. House said that Bourgeois had told Oscar 
Straus that the French did not care anything about their amend- 


453 


454 THE DRAFTING OF THE COVENANT 


ment to the Monroe Doctrine clause but simply that it was a good 
thing to trade with; and House added that his plan was to ride 
over them regardless of what they did. This is precisely what was 
done during the meeting as the French were making captious 
objections; and when I said then to Colonel House, “I think they 
will withdraw their amendment and not press it’, he replied, in 

strong and colloquial language of a character which he almost 

never used, to the effect that regardless of the French the Monroe 

Doctrine clause was going to be put through as it was. 

The final meeting of the Commission that evening (April 1 1), 
the Fifteenth Meeting, lasted from 8:30 till 12:45. 

As the previous meeting had gotten through Article 10, this 
meeting commenced with the Drafting Committee text of Article 
II and went through the draft, oar was accepted almost liter- 
ally as the Beatin. Committee had reported it (Document 30). 

The few changes made will be mentioned in the course of my 
account of the proceedings, which are quite fully reported in the 
minutes. 

When Article 12-a was reached (the Japanese proposal which 
I have quoted above),1 Cecil opposed it in accordance with the 
Drafting Committee report ? against it; and while Makino argued 
in favor of it as being in the spirit of the Covenant, he finally 
withdrew it. 

In a note written by Philip Baker during the discussion of 
this proposed Article there was the following very just observa- 
tion: 


This Article would make it infinitely more difficult to get 
agreement to the disarmament limits. i 
In connection with Article 15 the Commission considered 
the two proposals brought forward by the Drafting Committee, 
as suggested by the British. These are printed in parentheses” 
in Document 30 and I need not again quote them here.* After 
some debate, the Commission rejected the first of these proposals, - 
the one directing the Council to consider what steps should be 
taken if necessary to give effect to a unanimous report; Wilson 
reminded the Commission that the clause had been previously 


A 


*See p. 302. 
* See p. 414 sq. 
*See p. 404 sq. The text of the two proposals is also in the minutes of 
the Fifteenth Meeting. 


FINAL MEETING OF THE COMMISSION 455 


proposed and eliminated. It was, indeed, a matter to which he 
had given much thought as I have pointed out.* 

The other proposal regarding Article 15 (now the seventh 
paragraph of that Article) reserves liberty of action to the Mem- 
bers of the League in the absence of a unanimous report of the 
Council regarding a dispute. Although Bourgeois regarded this 
as a weakening of the Covenant, the Commission accepted it. 
The minutes do not specifically state this; but my notes as well 
as the subsequent text show clearly that this was the action taken. 

During the discussion of this proposal, Orlando was arguing 
to the effect that there might be some difficulty regarding 
the vote of the Council in a given case because of uncertainty 
as to just who the parties to the dispute were. Orlando’s re- 
marks seem to have been somewhat edited in the minutes. The 
reply of Wilson, as given in the minutes, was based on a note 
which I wrote to him as a comment on the argument of Orlando; 
this note is now before me; the words in parenthesis were written 
on the paper by the President, as he read it: 


The answer (to Sr. Orlando) is this: 
A Power must say 
1. 1 ama party to the dispute and my vote does not count 
in the recommendation; or 
2. I am not a party to the dispute and therefore my vote 
does count. 
The parties to the dispute are those that claim to be on one side 
or the other. 


The so-called Swiss amendment to Article 16 regarding the 
passage of troops, which I have discussed at some length above ? 
was not accepted as President Wilson did not favor it, a position 
in which he was supported by the French; the account in the 
minutes is not entirely clear; my notes say that the amendment 
to insert the words “on the request of the Council” was “‘lost”; 
and there is no doubt that this is correct as those words do not 
_ appear in the text of either Document 30 or Document 31. 

The French projet regarding objects of historical interest ® 
was mentioned but not seriously pressed as it was regarded as 
unnecessary. 

While the Article on Mandates (then Article 21, now 22) 


*See p. 291 sq. 
>See Chapter xxx. 
*See p. 452. 


456 THE DRAFTING OF THE COVENANT 


was being considered, questions were raised as to the meaning 
of some of its language, not unnaturally indeed, for the style of : 
this Article is somewhat like that of a political speech or party © 
platform. It differs very greatly from everything else in the 
Covenant ; and the language had hardly been changed since it was 
originally sponsored or, for aught I know, written by General 
Smuts ;! Wilson remarked as to these questions :? 


This formulation, you may remember, was adopted in the so- 
called Council of Ten, and simply taken over into this, so that I 
don’t think that I can interpret it for this group. 


Article 25 in. the text from the Drafting Committee (the 
final Article, which became 26) read thus: 


Amendments to this Covenant will take effect when ratified by 
the States whose Representatives compose the Council and by a 
majority of the States whose Representatives compose the As- — 
sembly. 


Under this provision for amendment of the Covenant, a 
Member of the League not on the Council and not ratifying an 
amendment, might be put in the position of agreeing, in ad- 
vance, to the amendment by other States and without its con- — 
sent, of a treaty to which it was a Party. President Pessda 
argued that this would be contrary to the Constitution of Brazil, 
which accordingly could not accept such a provision. I wrote 
the following note for President Wilson as a comment on the 
argument of Pessoa: 


This is a perfectly good constitutional objection according to 
the Constitutions of most South American States. 
Perhaps this would meet it: 
“A Member not agreeing to an amendment may withdraw 
from the League.” 


Accordingly the Article was amended by adding the follow- 
ing language :? 


Provided that no such amendment shall bind any Member of — 
the League which signifies its dissent therefrom, but in that case 
it shall cease to be a Member of the League. | 


*See Chapter 1x. 

* This is from an American stenographic report; cf. the minutes. 

*Changed later by omitting “provided that” and leaving the rest of the © 
phrase as a sentence. See p. 473. 


FINAL MEETING OF THE COMMISSION 457 


During the discussion of this Article, Philip Baker wrote 
me this prophetic note. I call it prophetic because a time limit 
might well have been put in as has since been formally proposed 
by way of amendment: 


Should not a state signify its dissent within a fixed time, say 3 
months? Otherwise it might suddenly refuse—years after—to be 
bound by an amendment to the Covenant. 


As had been anticipated, the Monroe Doctrine amendment, 
when Article 20 was reached, came up again for prolonged and 
heated discussion. The French first proposed the following 


language : 


Ne sont pas considérés comme incompatibles avec les disposi- 
tions du présent Pacte les engagements internationaux destinés a 
assurer le maintien de la paix tels que les traités d’arbitrage. Il en 
est de méme pour toutes institutions ou doctrines propres a cer- 
taines régions, telles que la doctrine de Monroe, en tant qu'il ne 
peut en résulter pour les Etats signataires aucun obstacle a l’exé- 
cution de leurs obligations. 


I hastily made a rough translation of this for President 
Wilson as follows : 


International engagements intended to assure the maintenance 
of peace, such as treaties of arbitration, shall not be deemed in- 
compatible with the provisions of this Covenant. 

To the same effect shall be regarded all arrangements or doc- 
trines applicable to certain regions, such as the Monroe Doctrine, 
so far as they do not effect any hindrance for the Members of 
the League in the fulfillment of their obligations. 


I thought Mr. Wilson was momentarily disposed to accept 
this; but after some discussion he agreed that it was objection- 
able. 

Another translation written at the time (I think by Cecil) 
read thus: 


International engagements intended to assure the preservation 
of peace, such as arbitration treaties, shall not be considered to be 
incompatible with the terms of the Covenant. In the same way, 
institutions or doctrines peculiar to certain regions, such as the 
Monroe Doctrine, shall not be considered incompatible with the 
terms of the Covenant, unless they obstruct Members of the 
League in the execution of their obligations. 


458 THE DRAFTING OF THE COVENANT 


and on this paper, showing perhaps Cecil’s idea, he had stricken 
out the words commencing “unless they” and written instead 
the following : 


; 
it being well understood that no Member of the League de-- 
sires under cover of this Article to withdraw from the obligations 


securing peace imposed upon it by this Covenant. 


Still another British translation of the latter part of the 
French proposal was this: 


‘The same shall apply to all institutions or doctrines applicable 
to certain regions, such as the Monroe Doctrine, in as far as no 
obstacle to the execution of their obligations is created for the 
signatory states. 


It may seem hardly worth while to reproduce such informal 
papers as these; but I think they are of some value in showing 
how the discussions were carried on. House was sitting on 
Wilson’s left, then came Cecil and then Smuts. My place was 
just back of the interval between Wilson and House. Shepardson 
and Philip Baker were both very near me and we were in the 
habit of exchanging whispered or written comments as the 
discussions went on. 

Some of the remarks of Mr. Wilson from time to time dur- 
ing the debate were thus taken down by one of our stenog- 
raphers: + 


I do not think there is a thing, and if there is something or 
may be something in the Monroe Doctrine which is inconsistent 
with these obligations, and if there is, and I do not think there’ 
is, | am clear that there is not, but if there is, of course the obli- 
gations of the United States under this Covenant take precedence 
of anything that might stand in the way. There can be no doubt 
as to what the United States binds itself to in this Covenant, and 
I would urge that I don’t like that suspicion cast upon the Monroe 
Doctrine. 


* * * * * * 


May I say this. There is no thought in America that the Mon- 
roe Doctrine interferes with the full performance of the obligations 
of the United States under the Covenant. There is in some quar- 
ters what I consider an unfounded impression that the Covenant 


*] make no change in the notes as I have them, despite their obvious 
imperfections. 


FINAL MEETING OF THE COMMISSION 459 


to some extent may invalidate the Monroe Doctrine. There is no 
thought in my mind that the Monroe Doctrine invalidates the Cov- 
enant, but there is in some minds the thought that the Covenant 
invalidates the Doctrine, so that we are seeking to remove that, 
as I believe, erroneous impression by distinctly saying, there is 
nothing in this Covenant inconsistent with the Monroe Doctrine. 
Now, if there is anything in the Monroe Doctrine inconsistent 
with the Covenant, the Covenant takes precedence of the Monroe 
Doctrine, not only because it is subsequent to it, but because it 
is a body of definite obligations which the United States cannot 
explain away even if it wanted to explain Anybody reading the 
Covenant and seeing the assent of the United States appended 
can not [?] he wh) OF * * * * * * 
bring its forces to Europe whenever it is obliged to do so by the 
terms of this Covenant. That is the only thing, that until this 
time, the United States never did. It is one thing that it never 
wanted to do, but it is one thing that it is consciously consenting 
to in becoming a member of this League; so that it is reversing its 
whole historic [?] * * * in assenting to this Covenant 
and it needs to be assured that in doing that it is not invalidating 
long-continued understandings on the other side of the water, and 
therefore, I earnestly hope that the suggestion will not be pressed 
that the original language be altered. 


* * * * * aK 


I respectfully urge that in phraseology of that sort we are 
casting suspicion upon the good faith of the United States in sign- 
ing this Doctrine. I mean that any language of that sort is sus- 
ceptible of that interpretation. How could the United States con- 
sciously sign this Doctrine if the Monroe Doctrine was incompat- 
ible with it? It is inconceivable. You see, the whole object of this 
mentioning of the Monroe Doctrine is to relieve a state of mind 
and misapprehension on the other side of the water; relieve the 
minds of certain conscientious public men in the United States 
who want to be assured that there is no intention in this League to 
interfere with the Doctrine, which if they all knew to be incon- 
sistent with the Covenant, they would not in the same breath ask 
for an explanation like this and ask to be admitted with a League 
which was inconsistent with a situation like this. 


* * * * * * 
I understand that the French intend to publicly oppose this 


Article. That would create a most unfortunate impression on the 
other side of the water. 


* * * * * * 


460 THE DRAFTING OF THE COVENANT 


To M. Larnaude: 

It seems to me that all your objections are similar in the 
thought they express, namely, that they all really question the 
validity of the adherence of the United States to the Covenant. 


As the discussions proceeded, I wrote still another note for 
Mr. Wilson on the French proposal: 


The original language contains nothing which the French can 
rightly possibly object to. Study of the language of the amend-_ | 
ment increases my unfavorable opinion of it. ? 


A later redaction of the French proposal was written out in 
pencil at the meeting by Larnaude as follows: r 
a 

} 


Ne sont pas considérés comme incompatibles avec les disposi- 
tions du présent Pacte les engagements internationaux destinés a 
assurer le maintien de la paix tels que les traités d’arbitrage. 

Il en est de méme de tous autres engagements quels qu’ils soient, 
en particulier de ceux propres a certaines régions, commes ceux. 
qui résultent de la Doctrine de Monroe, en tant qu’ils sont destinés- | 
au maintien de la paix que le présent Pacte a pour but d’assurer. 


However, the French proposals came to nothing; the Monroe 
Doctrine amendment was not changed from the language origin- 
ally proposed, becoming, however, Article 21. This of course | 
automatically changed the numbers of the succeeding Articles, 
former 21 becoming 22 and so on. , 

One change, resulting from the debates on the Monroe Doc- 
trine, was made in Article 20 at the suggestion of Mr. Koo. 
That was the insertion of the words “or understandings,” 1 so 
that the first paragraph of Article 20 read, as it reads now, as” 
follows: 


; 


The Members of the League severally agree that this Cove-_ 
nant is accepted as abrogating all obligations or understandings 
inter se which are inconsistent with the terms thereof, and solemnly \ 
undertake that they will not hereafter enter into any engagements 
inconsistent with the terms thereof. | 


This satisfied Mr. Koo’s doubts as to the language of the 
Monroe Doctrine Article; and after the meeting he told me that | 


*My notes had the words “and understandings” as those adopted; but all 
the notes of others had the word “or.” The meaning is the same. 


————SS== 


FINAL MEETING OF THE COMMISSION 461 


he was much pleased with the result and was inclined to think 
that I was right in what I had told him on the afternoon prior 
to the meeting, particularly in view of the adoption of his amend- 
ment. 

Toward the close of the meeting the Japanese brought for- 
ward their final proposal for race equality by way of an amend- 
ment to the Preamble; its text, as it was laid on the table in 
English and French,! was this: 


(To be inserted in the Preamble after “relations between na- 
tions,” and before “by the firm establishment,” etc.) 

. . . by the endorsement of the principle of equality of nations 
and just treatment of their nationals, 


Insérer entre “honorables entre les peuples” et “l’affirmation 
expresse”’ : 

Yacceptation du principe de |’égalité des nations et du juste 
traitement de leurs nationaux, 


The presentation of this proposal by the Japanese delegates 
was very admirably done. Baron Makino read a carefully pre- 
pared statement, which the minutes have in full. Viscount Chinda 
also spoke. It seemed as if they were supported by the feelings of 
almost every one present. Lord Robert Cecil refused to accept 
the amendment and stood on his refusal, acting, as he said, under 
instructions from his Government. It seemed to me at the time 
that Cecil felt that he was performing a difficult and disagree- 
able duty. After making his statement Cecil sat with his eyes 
fixed on the table, and took no part in the subsequent debate. The 
minutes condense a good deal what was said; but Orlando, Bour- 
geois, Larnaude, Veniselos, Kramar and Koo all spoke in favor. 
Indeed, the form of the proposal was such that to formulate any 
objection to its language was not an easy task. No one could 
very well say that he objected to the principle of equality of 
Nations or that he favored unjust treatment of any nationals; but 
however unobjectionable the words, as words, might be, their very 
vagueness could only mean that they were a sort of curtain be- 
hind which was the question of White Australia and of im- 
migration of Eastern peoples into countries which regarded the 
possibility of such immigration as impossible to discuss. 

* Note that the proposal in French refers to the French text of the Preamble 
as of February 14, which is Annex 1 to the French minutes of the Tenth 


Meeting in Document 20, and not to the French translation of the Drafting 
Committee text, which is Document 36. i 


462 THE DRAFTING OF THE COVENANT 


From the standpoint of the terms of the proposals, the matter © 
was very well put by Veniselos, who 


reminded the Commission that he had been largely responsible 
for the disappearance of the religious liberty clause from the - 
Covenant. He had thought that if this clause were cut out the - 
difficulty relative to the racial question would likewise be elimi- 
nated. Today, however, the question had appeared in a different — 
light and Japan had taken her stand upon another ground; they 
were talking not of the equality of races, but of the equality of © 
nations themselves and of just treatment of their nationals. It — 
would be very difficult to reject such a proposal especially since — 
Baron Makino had carefully pointed out that his proposal did not 
involve any State in the obligation to pass any measures whatever — 
with respect to immigration. If the Japanese amendment were 
accepted and were written into the Preamble, a clause relative to 
religious liberty might also be introduced. 


The other view was stated in a phrase by Colonel House. 
While this Japanese proposal was up, he wrote for the President 
the following note: 


The trouble is that if this Commission should pass it, it would 
surely raise the race issue throughout the world. 


Mr. Wilson spoke on the matter, not directly against the 
Japanese idea, but rather suggesting the inadvisability of putting 
the amendment into the Covenant. However, his words speak 
best for themselves and thus they were taken down by an Ameri- 
can stenographer : + 


Gentlemen, it seems to me that it is wisest that we should be 
perfectly candid with one another in a matter of deep importance 
like this. The trouble is not that any one of us wishes to deny the 
equality of nations or wishes to deny the principle of just treat- 
ment of nationals of any nation. The trouble is not with our deci- 
sions here, but with the discussions which would certainly be 
raised in the Plenary Council if the words suggested were intro- 
duced into this Covenant. My own interest, let me say, is to quiet 
discussion that raises national differences and racial prejudices. 
I would wish them, particularly at this juncture in the history of 
the relations of nations with one another, to be forced as much as 
possible into the background. We here have no choice as to the © 


* Cf. the summary of a few lines in the minutes. : i 


FINAL MEETING OF THE COMMISSION 463 ‘ 


part that is to be played by others of our colleagues of the Con- 
ference of Peace in the discussion of matters of this sort. It is 
not only in this room, but elsewhere, that attention has been drawn 
to this and similar suggestions, and those very suggestions have 
set burning flames of prejudice, which it would be very unwise to 
allow to flare out in the public view in the Plenary Conference. It 
is in my own mind for the purpose of quieting these prejudices, of 
letting them play no part in the discussions connected with the 
establishment of this League, that I am looking at this whole 
matter. How can you treat on its merits in this quiet room a 
question which will not be treated on its merits when it gets out of 
this room? It is a question altogether of the wisest thing to do, not 
a question of our sentiments towards each other or of our position 
with regard to the abstract statement of the equality of nations. 
This League is obviously based on the principle of equality of na- 
tions. Nobody can read anything connected with its institution or 
read any of the articles in the Covenant itself, without realizing 
that it is an attempt—the first serious and systematic attempt made 
in the world to put nations on a footing of equality with each other 
in their international relations. It is recognized everywhere that 
this is an attempt, a most hopeful attempt, to secure for those 
nations which could not successfully protect themselves if attacked 
by the stronger nations of the world, the support of strong nations 
of the world in their defense. It is a combination of moral and 
physical strength of nations for the benefit of the smallest as well 
as the greatest. That is not only a recognition of the equality of 
nations, it is a vindication of the equality of nations. No one 
could question, therefore, the principle upon which this Covenant 
is based, and I think we ought to approach the present question 
which has been raised, in what I must call the very impressive 
[statement] by Baron Makino, from the point of view of what it is 
wisest to do in connection with the discussion which will attend 
the institution of this great League. I know from my own knowl- 
edge of their attitude and character that these considerations apply 
strongly to the very thoughtful men who represent Japan at this 
table. In presenting this matter they are doing their duty; they 
are doing it with conscious solemnity. But, I am saying what I 
have just said with a view of avoiding the very embarrassments 
which I think they have in mind. I offer these suggestions with 
the utmost friendship, as I need not assure my Japanese colleagues, 
and with a view to the eventual discussion of these articles. 


The amendment was pressed to a vote, but only the affirm- 
ative vote was taken; the objection of Cecil prevented its adop- 
tion despite the fact that the majority of the Commission were 
recorded in the affirmative. My notes show that the eleven 


404 THE DRAFTING OF THE COVENANT 


votes + in favor of the proposals were cast as follows: by Japan, . 


France and Italy, two each; and by Brazil, China, Greece, Yugo- 
slavia and Czecho-Slovakia. The minutes, speaking of the vote, 
say that eleven votes out of seventeen were recorded in favor of 


the amendment. The two members of the Commission who were © 


absent were Smuts and Hymans. The negative vote was not 
taken, so the American delegation and also the other three dele- 
gates present, from Portugal, Poland and Roumania, were not 
formally recorded. Of these last, only Dmowski, according to the 
minutes, had spoken during the debate. 

Mr. Wilson’s statement on the vote was taken down as 
follows :? 


I will put the question to a vote. All in favor of incorporating 
the phrase will be kind enough to raise their hand. I have counted 
eleven. 


It has been our practice to make the vote unanimous when in- — 


corporating a provision unless those who have entered (voted?) are 


willing to let a provision be incorporated as (with?) a reservation — 


on their part. 
I think there are too serious objections on the part of some of 
us to make that possible. 


In other words, Wilson ruled in this case that unanimity 
was necessary when an objection was finally pressed. Larnaude 
dissented from this ruling, claiming that it was not in accordance 
with previous rulings; but Wilson sustained his ruling, saying: 


I think that M. Larnaude is mistaken. I follow the course of © 


saying that then the proposition was adopted if there was no ob- 


jection. In several cases, the French delegates have merely made — 
a reservation; have stated that they would not insist upon their ~ 


objection. Whenever an objection has been insisted upon, I felt 
obliged to say that it has not been adopted. At least one objection 
is insisted upon by one of the Governments concerned. I am 
obliged to say that it is not adopted. 


Regardless of any question of procedure, it was clear that 
the objection of the British Delegation was of such a character 
that, notwithstanding the views of the United States or of any 
other delegations, the Japanese proposal could not become part 
of the Covenant. 


+A maj ority of the nineteen members of the Commission. 
7 Cf. the minutes as to this and also the remarks quoted infra. 


FINAL MEETING OF THE COMMISSION 465 


Wilson closed the discussion with the following words: 


I have gone on the principle that any objection insisted upon 
was an obstacle to the adoption. I do not think that anybody will 
ever interpret the result of this evening’s discussion as a rejection 
on our part of the principle of equality of nations. 


Mr. Shepardson prepared a statement in regard to the Japa- 
nese proposal. The next day, Colonel House told Mr. Shepard- 
son to show it to the Japanese and say to them that perhaps 
President Wilson would give it out if they wished it, but that 
it would not be given out if they did not wish. My recollection is 
that it was never used, but it is well worth reproduction: 


At a meeting of the League of Nations Commission on Fri- 
day, April 11th, the Japanese Delegation proposed an amendment 
to the Preamble of the Covenant, as follows: To insert after the 
words “by the description of open, just and honorable relations 
between nations” an additional clause to read “by the endorsement 
of the principle of equality of nations and just treatment of their 
nationals.” 

The amendment was admirably presented by Baron Makino. 
In the course of his speech he emphasized the great desire of the 
Japanese Government and of the Japanese people that such a prin- 
ciple be recognized in the Covenant. A discussion followed, in 
which practically all of the members of the Commission partici- 
pated. The discussion was marked by breadth of thought, free 
and sympathetic exchange of opinion, and a complete appreciation 
by the members of the Commission of the difficulties which lay in 
the way of either accepting or rejecting the amendment. . 

The Commission was impressed by the justice of the Japanese 
claim, and by the spirit in which it was presented. Mention was 
frequently made in the course of discussion of the fact that the 
Covenant provided for the representation of Japan on the Execu- 
tive Council as one of the five Great Powers, and that a rejection 
of the proposed amendment could not, therefore, be construed as 
diminishing the prestige of Japan. 

Various members of the Commission, however, felt that they 
could not vote for its specific inclusion in the Covenant. It was 
pointed out that the Preamble, as it stood, laid down principles 
which were developed in detail in certain articles of the Covenant; 
and that it would therefore be inconsistent with the nature of the 
Preamble to include in it any general statement which was not so 
subsequently developed. It was further said that the phrase “by 
the prescription of open, just and honorable relations between na- 
tions” expressed a broad principle in harmony with the Japanese 


466 THE DRAFTING OF THE COVENANT 


amendment, and that its scope might be restricted if an attempt — 


were made to define it more closely. 
Other members of the Commission felt that the proposed 


amendment was of ambiguous significance, that it was either — 


formal or substantial. If formal, it would provoke a great deal 
of criticism generally which would not be warranted by its intent. 
If substantial, it would contravene that clause of the Covenant 
which reserves to the decision of the several States members of 
the League matters which are solely within their domestic juris- 
diction. 

For these reasons the Commission was reluctantly unable to 
give to the amendment that unanimous approval which is neces- 
sary for its adoption. 


By the time the Japanese amendment had been voted on the 
hour was very late. The subsequent discussions were hurried 
and the minutes do not give a very clear account of what was 
done. 

As I pointed out above! there is no doubt that the French 
text was considered and that Larnaude and I were appointed 
a Committee on the subject. The question as to the four States 
to be named on the Council in addition to the five Great Powers 
was also brought up; but as no action was taken it was left to 
the Conference. 

In effect the Commission adopted an Annex to the Covenant, 
mentioned in Article 1; but no form of Annex * was passed on 
and no list of neutral States to be invited was agreed to, although 
mention was made of the thirteen countries that had laid their 
views before the Commission.? This matter of the invited 
Neutrals was to come up later, but a part of its history may be told 
now. Earlier in the day (April 11) at the close of one of the 
Plenary Sessions of the Conference I had talked with Secretary 
Lansing about the Annex and regarding the States that should 
be invited to join the League. Mr. Lansing expressed the opinion 
that both the Dominican Republic and Mexico should be in- 
vited, but not Costa Rica. I mentioned the question of these 
three States to Colonel House on April 12 and at his direction 
I wrote this memorandum for the President about them: 


Thirteen neutral States are to be invited to accede to the Cove- 
nant. 


*See p. 439 sqq. 
? See p. 400. 
7 See Document 25. 


0 et 


Sm 


FINAL MEETING OF THE COMMISSION 467 


ae 
~ “Es 


Not included in those thirteen States are the following: 
1. Costa Rica. 

While a belligerent, Costa Rica is not invited to the 
Conference and we do not recognize the Government of 
Tinoco. It is assumed that Costa Rica should not be in- 


vited. 
In my opinion such an invitation would be recognition. 
2. Mexico. 
Lord Robert Cecil is quite opposed to the inclusion 
of Mexico. 


Mr. Lansing expressed to me an opinion in favor of 
the invitation. 

I believe that the present Government of Mexico has 
not been recognized either by Great Britain or France, 
and the invitation would, in my opinion, be a recognition 
of that Government by those countries. 

3. Santo Domingo. 

Mr. Lansing expressed to me an opinion in favor of 
the invitation. 

I am inclined to think that Mr. Stabler believes that 
such an invitation would be inadvisable. 

Santo Domingo was represented at the Second 
Hague Conference. 


Colonel House sent my memorandum up to the President 
with this notation: “Dear Governor: Will you not initial the 
ones to be invited, if any? E. M. H.” 

Mr. Wilson’s decision was made in the following words of 
his letter to me of April 15: 


In returning this memorandum which you were kind enough 
to send me, let me say that I think on the whole it would be wise 
not to include any one of these three states in the invitation. 


Finally, although the minutes here are quite vague, the Com- 
mission seemingly? adopted a resclution for an Organization 
Committee in this form, differing slightly from my draft: ? 


Resolved that in the opinion of the Commission the President 
should be requested by the Conference to invite seven Powers, in- 
cluding two neutrals, to name representatives on a Committee 

a. to prepare plans for the organization of the League 

b. to prepare plans for the establishment of the Seat of the 

League 


*See the French Note of April 22, quoted at p. 484. 
? See p. 451. 


a 


468 THE DRAFTING OF THE COVENANT 


c. to prepare plans and the Agenda for the first meeting of the 
Assembly. 
The Committee shall report both to the Council and to the 
Assembly. 


As I indicated above, it was very late, nearly one o’clock in 
the morning, when the Fifteenth Meeting of the Commission 
adjourned. Although it was known to be the last meeting 
which the Commission would hold, there were none of the cus- 
tomary closing remarks as there had been a good deal of feel- 
ing displayed, particularly by the French, and the Japanese were 
undoubtedly very disappointed. From my own point of view, 
the evening was a most exhausting one of continuous work. 
President Wilson called me into consultation on almost every 
point that came up during the four hours; incidentally I had 
had no dinner and had quite a little work to finish after the 
meeting ended. 

The English text of the Covenant resulting from the last 
two meetings of the Commission on April 10 and II was pre- 
sumably to be the final English text. The changes which had 
been made in the text reported by the Drafting Committee 
(Document 30) were very few; they have all been mentioned 
above, but for convenience I summarize them here: 


In Article 5, the order of the first two paragraphs had been 
changed, without change in language. 

“Geneva” had been inserted in the blank in Article 7. 

Article 12a (the Japanese Amendment) had been omitted. 

In Article 15 the first parenthetic proposal had been stricken 
out and the second had been left in. 

The words “or understandings” had been inserted in Article 20. 
after the word “obligations”. 

The Monroe Doctrine Amendment had been inserted as Ar- 
ticle 21 and the subsequent Articles renumbered accordingly 22 
to 26 (instead of 21 to 25) 

A proviso? had been added to the final Article (now 26) re- 
lating to amendments to the Covenant. 


It is unnecessary to make any separate print of the text 
showing these changes.2, They were not at all modified in the 
text of the Covenant which became part of the Treaty of Ver- 

* For the language of this see p. 456. 


*They are sufficiently shown in Document 31, which incorporates them 
with a few other modifications, described at pp. 472-476. 


FINAL MEETING OF THE COMMISSION 469 


sailles, except as to one very trifling and verbal alteration ! of the 
amendment to Article 26. 


Numbering of the Covenant Articles 


This note on the numbering of the Articles of the Covenant 
refers to English Texts only and covers the changes in arrangement 
etc. from the Hurst-Miller Draft (Annex 1 to the minutes of the 
First Meeting of the Commission on the League of Nations in Docu- 
ment 19) to the final text in the Treaty of Versailles (Document 34). 

The intermediate Drafts to be mentioned are as follows: 


Covenant of February 14 (Annex to the minutes of the Tenth 
Meeting of the Commission in Document 19; this text also 
appears in Document 24). 

Draft of March 18 agreed on between Wilson and Cecil 
{Document 24). 

Draft of March 26, following the Eleventh to Thirteenth 
Meetings of the Commission (Document 27). 

Text of Hurst and Miller for Drafting Committee, March 
31 (Document 28). 

Text from Drafting Committee, April 5 (Document 30). 


The English Text of April 21 (Document 31) is exactly the 
same in arrangement as the final Treaty text and requires no further 
mention. 

There is a tabular statement at p. 129 which shows the arrange- 
ment changes from the Hurst-Miller Draft to the Covenant of 
February 14; and Document 24 indicates in parallel columns the 
renumbering which resulted from the Wilson-Cecil agreement of 
March 18; the following tabulation includes all such changes, its basis 
being the final Treaty of the Covenant. 


ARTICLE I 


Paragraphs 1 and 2 originated as Article 6 of the Hurst-Miller 
Draft, which became Article 7 of the Covenant of February 14 and 
in Documents 24 and 27; with the added accession clause, the next 
change was to two Articles, 1 and 26, in Document 28; and in Docu- 
ment 30 the present position of the paragraphs became fixed. 

Paragraph 3, the withdrawal clause, first appears in Document 
27 as paragraph 2 of Article 24 and similarly in Document 28. In 
Document 30 it became finally the last paragraph of Article 1. 


ARTICLE II 


This was Article 1 of the Hurst-Miller Draft and thereafter 
until Document 28, when it became and remained Article 2. 


See p. 473. 


470 THE DRAFTING OF THE COVENANT ' 


ARTICLE IIT 


In origin, this Article was most of Article 2 of the Hurst-Miller 
Draft. It continued as Article 2 until Document 28, when it became 
and remained Article 3. 


ARTICLE IV 


This Article was numbered 3 in the Hurst-Miller Draft and there- 
after until Document 28, when it became and remained Article 4. 


ARTICLE V 


The procedure clause of this Article, paragraph 2, was the last 
paragraph of Article 2 of the Hurst-Miller Draft. With its other 
- two paragraphs added, the Article became 4 of the Covenant of 
February 14,:and was so numbered until Document 28, when it 
became and remained Article 5. 


ARTICLE VI 


This Article was numbered 4 in the Hurst-Miller Draft and 
became Article 5 of the Covenant of February 15 it continued as 
Article 5 until Document 28, when it became and remained Article 6. 


ARTICLE VII 


The first two paragraphs of this Article relate to the Seat of 
the League; provision for such a Seat was made in the opening 
sentence of Article 4 of the Hurst-Miller Draft, which as above stated 
became Article 5 of the Covenant of February 14 and in Documents 
24 and 27; in Document 28, separate clauses for the Seat of the 
League became and remained the opening portion of Article 7. 

The third paragraph of this Article, relating to women, originated 
as Article 25 in Document 27 and had the same number in Document 
28; it became the third paragraph of this Article in Document 30. 

The last two paragraphs of the Article, relating to diplomatic 
privileges etc., were Article 5 of the Hurst-Miller Draft and Article 
6 of the Covenant of February 14 and in Documents 24 and 27; 
in Document 28 they became and remained the final paragraphs of 
this Article. 


ARTICLE VIII 


This (Disarmament) Article had the same number throughout. 


ARTICLE IX 


This Article originated in the erase of February 14 and there- 
after retained the same number. 


FINAL MEETING OF THE COMMISSION 471 


ARTICLE X 


This was Article 7 of the Hurst-Miller Draft and in all the sub- 
sequent Documents was Article ro. 


ARTICLES XI-XVII 


In the Hurst-Miller Draft these Articles were numbered 9 to 


T5 inclusive ; in all the subsequent Documents they had their present 
numbers. 


ARTICLE XVIII 


This Article (registration of treaties) was numbered 21 in the 
Hurst-Miller Draft, 23 in the Covenant of February 14; it was 
Article 21 in Documents 24, 27 and 28; it was Article 18 in Document 
30 and thereafter. 


ARTICLE XIX 


This Article (revision of treaties) originated as Article 24 in the 
Covenant of February 14 and was numbered 22 in Documents 24, 
27 and 28; it was Article 19 in Document 30 and thereafter. 


ARTICLE XX 


This Article (inconsistent treaties) was Article 22 of the Hurst- 
Miller Draft, numbered 25 in the Covenant of February 14; it was 
Article 23 in Documents 24, 27 and 28; it was Article 20 in Document 
30 and thereafter. 


ARTICLE XXI 


This (Monroe Doctrine) Article originated in Document 31. 


ARTICLE XXII 


This (Mandates) Article was Article 17 of the Hurst-Miller 
Draft, it became Article 19 of the Covenant of February 14; it was 
numbered 18 in Documents 24, 27 and 28; it was Article 21 in Docu- 
ment 30-and Article 22 thereafter. 


ARTICLE XXIII 


This Article includes Articles 16, 18 and 20 of the Hurst-Miller 
Draft which were numbered respectively 18, 20 and 21 in the 
Covenant of February 14; with additions it became Article 19 in 
Documents 24, 27 and 28; it was Article 22 in Document 30 and 
thereafter 23. 


ARTICLE XXIV 


This Article originated as Article 22 of the Covenant of February 
14 and became Article 20 in Documents 24, 27 and 28; it was Article 
23 in Document 30 and thereafter 24. 


yy P ee 


472 THE DRAFTING OF THE COVENANT 


ARTICLE XXV 


This (Red Cross) Article originated as Article 24 in Documen 
30; thereafter it was numbered 25. 


ARTICLE XXVI 


This (amendments) Article originated as Article 26 of th 
Covenant of February 14; it was Article 24 in Document 24 an 
was the first paragraph of Article 24 in Documents 27 and 28; it wa 
Article 25 in Document 30 and thereafter 26. 


CHAPTER XXXIV 
LATER CHANGES 


Tue English text of the Covenant as adopted by the Com- 
mission on the League of Nations was forthwith printed by 
the American printers, under my direction. 

In sending copy to the printer, I recast the paragraphing of 
Articles 6 and 7, so as to agree with the paragraphing of 
the French text as it was then proposed. I also made a change 
in the final Article (Article 26) which had been amended by the 
Commission. The amendment had been adopted in the Ameri- 
can form of a proviso,’ very commonly used even when the 
clause is not really a proviso at all. In any case this form is 
quite awkward in French, so I struck out the words “provided 
that” and left the rest of the amendment as a separate sentence. 
The Article. thus read as follows: 


Amendments to this Covenant will take effect when ratified by 
the States whose Representatives compose the Council and by a 
majority of the States whose Representatives compose the As- 
sembly. No such amendment shall bind any Member of the 
League which signifies its dissent therefrom, but in that case it 
shall cease to be a Member of the League. 


In sending the President copies of the paper I thus explained 
the change: 


The words “provided that’”’ have been omitted from the addi- 
tion to Article xxvi in order to divide the Article into two sen- 
tences, particularly as in this form the language will probably be 
more in accord with the French text. 


Only a few copies of this print were made.” [I sent three of 
them to President Wilson, ten to Colonel House and three to 
the British Delegation. House thought it was very important 
. *See p. 456. 


“I do not reproduce it. See the following account of changes made before 
the next print, which is Document 31. 


473 


474 THE DRAFTING OF THE COVENANT 


that it should not be known at the time that this text had been 
printed at all. It was, however, essential that it should be printed, 


! 
: 


. 


partly as a record of the precise text as it stood at that date and — 


also for use in the preparation of the French text. 

Even now the English text was not complete. There was a 
blank to be filled in sometime in Article 4, the names of the four 
States on the Council; and the Annex, while adopted in prin- 
ciple, was not yet definitive. Furthermore (as it turned out) 
other changes were to be made, some in connection with the 
French text, some to meet the wishes of the British, one at the 
Plenary Session of the Conference and some during the printing 
of the Treaty of Versailles. 

The first changes made resulted from the consideration of 


the French text. While I devote a separate chapter to this matter, 


I may say here that at this time, from April 12 on, I was con- 
stantly in conference with Major Butler of the British regarding 
the French text; and at our first discussion of it with the French 
representatives, on April 15, I drew up a tentative redraft of the 
then first two paragraphs of Article 1, partly because the Eng- 
lish was not clear and partly because the change would facilitate 
the French version. This redraft} is identical with the first 
paragraph of Article 1 of the Covenant in the Treaty of Ver- 
sailles. 

Cecil had gone to London and on April 16 Butler telephoned 
me that Cecil had told him that he thought there should be no 


change in the English text unless it was approved by President — 


Wilson as Chairman of the Commission. I explained to Butler 


the enormous difficulties that would be raised if this was at- 


tempted before the French text was finished, the discussion of © 
which was then actively going on; with some hesitation, Butler — 


agreed to this. 


At about this time it was agreed also to strike out the words ? 


“voting shall be by States’ in Article 3 and also in Article 4; 


and we also agreed to some paragraphing changes, the tendency ~ 


of all of which was to make shorter and more numerous para- 
graphs in accordance with the French style, which to my mind 


is the better English style also. My note on the changes, made at — 


the time (written on April 17) follows: 


+My note on my copy of the draft reads: 


Last proposal to Butler 15 April, 1919. Butler said by phone Hurst 


agreed 16 April, 1910. 


° They were superfluous, in view of the explicit statement as to one vote 


for each Member of the League. 


LATER CHANGES 475 


I have agreed with Butler of the British, Hurst having ap- 
proved, that the first two paragraphs of Article 1 of the English 
text shall be re-cast so as to read as follows: 

“The original Members of the League of Nations shall 
be those of the Signatories which are named in the Annex to 
this Covenant and also such of those other States named in 
the Annex as shall accede without reservation to this Covenant. 
Such accession shall be effected by a Declaration deposited with 
the Secretariat within two months of the coming into force of 
the Covenant. Notice thereof shall be sent to all other Mem- 
bers of the League.” 

This has also been agreed with de Lapradelle, but remains sub- 
ject to the approval of Larnaude and also the President as Chair- 
man of the Commission, or of the Commission as a whole. 

I have also recommended to Butler that the following change 
be made in the English text in Article 1, last paragraph: Strike 
out “voting shall be by States”; and in the last paragraph of Ar- 
ticle Iv strike out precisely the same thing. 

Butler said that Hurst agreed to this. 

I also agreed with Butler to make three paragraphs out of the 
first paragraph of XIII. 

I agreed with Butler to make a new paragraph in Article xv, 
commencing with the words “for this purpose” in the present first 
paragraph. 


On April 19, these changes having been agreed to by Pro- 
fessor Larnaude as well as by the British, I took up the matter 
of having them approved by President Wilson. I wrote a 
memorandum on the subject and this memorandum, with a copy 
of the then latest print? of the Covenant marked to show the 
changes, I took over to House and told him that Cecil wanted 
formal approval of these changes by Mr. Wilson as President of 
the Commission. House approved of them. I then went to see 
President Wilson and explained the changes; he examined very 
carefully the marked text of the Covenant and then gave his 
approval. 

Then Butler and I on the same day (April 19) got up this 
memorandum for circulation by the Secretariat of the Commis- 
sion describing the changes: 


In connection with the preparation of the French text of the 
Covenant the following slight drafting changes were made in the 
English text by the Committee (Professor Larnaude and Mr. Mil- 
ler) appointed by the Commission. 


*See p. 473. 


476 THE DRAFTING OF THE COVENANT 


These changes were approved by President Wilson as President 
of the Commission and do not in any way affect the meaning of the 
text. 

1. Recast the first two paragraphs of Article 1 so as to read as 
follows: 


“The original Members of the League of Nations shall be 
those of the Signatories which are named in the Annex to this 
Covenant and also such of those other States named in the 
Annex as shall accede without reservation to this Covenant. 
Such accession shall be effected by a Declaration deposited 
with the Secretariat within two months of the coming into 
force of the Covenant. Notice thereof shall be sent to all 
other Members of the League.” 


2. Strike out as redundant from the last paragraph of Article 


11 the words “voting shall be by States,” and similarly strike out 
from Article 1v the same words. 


With these changes, the English text was at once reprinted 
by the American printers. Except as mentioned above in this 
Chapter, the text was literally that adopted by the Commission. 
This print, however, which is Document 31 (completed April 21) 
for the first time contained, as part of it, the Annex, which, as 
then printed, is almost literally the Annex as it appears in the 
Treaty of Versailles, except that Czecho-Slovakia appears in the 
order of the English spelling, after Cuba, instead of after Siam 
in the French order. Even this matter had been considered crit- 
ically, as shown by this memorandum: 


1. Czech—The German spelling. Preferred by Mr. Kerner, 
who says it is also preferred by Dr. Masaryk. 
2. Tschek—Alternative German spelling. 
3. Tchéc—The French spelling. 
4. Tchech—An occasional English spelling, used in some re- 
_ ports of the Paris Conference. 
5. Cech—The native spelling. 


I had spoken to Butler about the Annex on April 17, when he 
told me that it would be only tentatively approved in Cecil’s 
absence. 

On April 20 I saw Colonel House and spoke to him about 
the necessity of choosing four States to be represented on the 
Council of the League, to be named in Article 4 of the Covenant. 
I also said that the Covenant was ready except that the Annex, 
which I showed him, would perhaps have to be changed for the 


Set a. = 


bi 


H LATER CHANGES 477 


British to put in Newfoundland. House said to see Cecil and 
to say to him that he hoped they would not put in Newfoundland 


, as we had had enough trouble about the Dominions already; and 


i 


also for me to try to come to an agreement with Cecil about the 


‘four States that were to go in, and that he would think further 


about it. He also mentioned to me that the present intention was 


to name Sir Eric Drummond as Secretary General. 

I went to see Cecil and after some discussion we agreed on 
Belgium, Brazil, Spain and Greece as the four States. We 
thought that Belgium and Brazil were more or less inevitable; 
that it was necessary to choose a neutral, and Spain was the 
largest, the only possible alternative being Norway; and that 
Greece was the best of the Balkan States. I thought that per- 
haps China should be selected instead of Greece but was convinced 
on this point by the idea that, for the present, one Asiatic Power 
was enough. 

While my Diary says nothing about it, I have a recollection 
that Mr. Balfour and Colonel House talked over this matter the 
same afternoon and that they then agreed on the four States 
mentioned. 

The next day Colonel House told me to write a letter to the 
President calling his attention to the necessity of appointing a 
Secretary General, so I wrote as follows to the President, sending 
him with the letter a copy of the latest print of the Covenant, 
(Document 31) which included the Annex: 


By direction of Colonel House I have the honor to call your 
attention to the following provision of Article vr of the Covenant: 
“The first Secretary General shall be the person named in 

the Annex.” 

It will be observed from the text of the Covenant which is en- 
closed. that provision has been made in the Annex for the inser- 
tion of the name of the Secretary General. 

I ventured to suggest to Colonel House that the choice should 
be made by the Council of Four and the name inserted in the 
Treaty when finally drafted. 


The question as to whether or not the British Dominions and 
India by the terms of the Covenant were or should be eligible as 
Members of the Council of the League now came up and caused 
a good deal of difficulty during the next few days. The vital 
language was in Article 4: “The Council shall consist of .. . 
together with Representatives of four other States which are 


478 THE DRAFTING OF THE COVENANT 


Members of the League”; and the Article went on to use the 


word “States” four times and “State” once, in referring to the 
Members of the League on the Council. This language (“States | 


which are,” “States” etc.) excluded Canada and the rest, for 


although Members of the League they were not strictly States; if f 


it had read simply ‘‘four other Members of the League” with 


“States” changed to “Members of the League” etc. India would — 


be as much within the words as Holland. 


On April 21 Butler telephoned me that the British delegation t 
had met that day and wanted to make some changes in the Cove- 


nant by inserting the words “Member of the League” instead of 
“State.” I told him that I did not see that I had any power to 
agree to this. Later on, Mr. F. L. Walters, Cecil’s secretary, 
talked with me about this over the telephone and sent me this 
letter on behalf of Cecil: 


I enclose herewith a copy of the Covenant in which I have 
indicated the places in which the word “State” has been kept where 
the words “Member of the League” ought I think to be. This 
alteration is the only change made, except in the third line of Ar- 
ticle 1v, where the words “States which are” should be omitted. 

I am clearly of opinion, and I hope that you and Colonel House 
(with whom I understand you are taking counsel in the matter) 


will agree with me, that these are not in any way substantive. 


changes, but correct the failure on the part of the Drafting Com- 
mittee to express the sense of the Commission. I propose, if you 
agree to this course, that to all members of the Commission should 
be circulated a statement of the changes in question, with the note 
that if any member so desires, a meeting of the Commission must 
be held to discuss them; but that otherwise they will be embodied 
in the Covenant as presented to the Conference. 


The marked copy of the Covenant enclosed with this letter 
was the English text as it then stood (Document 31). Referring 
then to that text, the following were the desired changes indicated : 


In Article 4, first sentence of first paragraph, strike out the 
words “States which are.” 

In thirteen places, strike out “States” (or “State”) and insert 
“Members (or Member) of the League”, these thirteen places 
being: 

Article 4, first paragraph (twice). 

Article 4, second paragraph (twice). 

Article 4, last paragraph. 


LATER CHANGES 479 


Article 5, first paragraph. 

Article 5,second paragraph. 

Article 15, fifth paragraph. 

Article 15, last paragraph. 

Article 16, first paragraph (twice, in each case after “covenant- 
breaking’). 

Article 26 (twice). 


Aside from Article 4, some of these changes were imma- 
terial or from the point of view of drafting, as, for example, in 
Article 5, even desirable. However, as to the changes in Article 
A, it was perfectly clear to my mind that I had no authority what- 
ever to consent to them. It will be convenient to see here just 
how the first two paragraphs of Article 4 then read: 


The Council shall consist of Representatives of the United 
States of America, of the British Empire, of France, of Italy and 
of Japan, together with Representatives of four other States which 
are Members of the League. These four States shall be selected 
by the Assembly from time to time in its discretion. Until the 
appointment of the Representatives of the four States first selected 
byeescembly, Representatives Of... 0.02... .<s2aceeee ese 
shall be members of the Council. 

With the approval of the majority of the Assembly, the Coun- 
cil may name additional States whose Representatives shall al- 
ways be members of the Council; the Council with like approval 
may increase the number of States to be selected by the Assembly 
for representation on the Council. 


The second paragraph of that Article, in using the word 
“States” made a clear and definite limitation. So did the lan- 
guage of the first paragraph for that matter. It is true that 
in the Covenant of February 14 the opening sentence of Article 4 
(then Article 3) had read “Representatives of four other States 
Members of the League” and that by my proposal? to Hurst to 
change generally throughout the text the expression “States 
Members of the League” to “Members of the League,” this ex- 
pression became “Representatives of four other Members of the 
League” ; and this was the language which Hurst and I had pro- 
posed for the Drafting Committee on March 31 (see Document 
28). But the second sentence of the first paragraph in that text 
used the word “States,” which it was not proposed to change, 
so that the meaning would have been the same; and curiously 
enough the Drafting Committee was not content with the change 


*See p. 391. 


480 THE DRAFTING OF THE COVENANT 


proposed, and at the British suggestion (see Document 29), 
changed the language in the first sentence to “four other States 
which are Members of the League.” Assuming the desirability 
of the eligibility of the Dominions on the Council, it was not for 
me to alter the language, for it was a good deal more than a 
matter of drafting. 
I talked with Colonel House about the wish of the British to 
have these changes made as indicated by Cecil’s letter. I told 
him I did not see how they could be agreed to without a meeting 
lof the Commission. House said he thought so too and added that 
/ he did not want any change made so that the British Dominions 
could be represented on the Council. 
So that evening I considered the matter further and made a 
draft of an answer to Cecil which I drew up in final form the 
next morning, April 22: 


I have considered and discussed with Colonel House your let- 
ter of April 21 suggesting certain changes in the Covenant. 

It seems to me necessary to make some observations upon these 
changes in detail. 

In the second paragraph of Article Iv it is provided that, 

“The Council may name additional States whose repre- 
sentatives shall always be members of the Council.” 

It seems to me that it was clearly the intention of the Commis- 
sion to limit this permanent representation not only to States but 
to Great Powers. I do not think that it was at all intended that 
a Dominion or a Colony should possibly be added to the list of 
the Great Powers permanently represented on the Council. 

As to the Powers represented from time to time on the Coun- 
cil, I am inclined to take the same view, namely: that it was the 
intention of the Commission to exclude the Dominions and Colo- 
nies from such representation. The subject was not, so far as I 
recall, specifically discussed, but the representation of the smaller 
States was debated at great length, and was always debated, so 
far as I remember, as the representation of States. The number 
finally agreed upon was four, and I believe that if it had been sug- 
gested that of those four at any given time New Zealand and the 
Philippines might be two, the whole subject of the representation 
of the smaller States would have been re-opened. I am the more 
inclined to this view when I think of the first proposal regarding 
the representation of the smaller Powers, which was that only 
two should be represented. In such a case if the Dominions and 
Colonies were to have representation, it might be that at a certain 
period the small States would have no representatives in the 
Council at all. 


a 


—— 


LATER CHANGES 481 


While I do not remember discussion of this subject by the 
Drafting Committee, according to my notes the words “States 
which are” were inserted in the first paragraph of Article 1v by 
the Drafting Committee in its meeting on April 1. 

Some of the changes suggested in other articles might perhaps 
be made, for example the two changes suggested in Article v and 
the second change suggested in Article xxv1. 

The two changes suggested in Article xv and the first change 
suggested in Article xxvi would, I think, only be necessary if 
the changes which you propose in Article Iv were adopted by the 
Commission. 

I may add that simply from the point of view of drafting, I 
think that no change should be made in Article xvi in any event, 
as I cannot imagine a Dominion or Colony being separately at war. 

Feeling as I do as to the effect of the amendments, you will 
appreciate that I am obliged with regret to differ from your con- 
clusion; for I believe that the changes which you propose would 
require the approval of the Commission itself and that I am wholly 
without authority to agree to them. 


I point out that my letter says nothing about the American 


policy or attitude as to these proposals, a point I discuss later. 


Before sending this letter I took it over to House and he 
approved it. In the evening of that day House told me that he 


had sent to the President a copy of my letter to Cecil with a note 


saying that I had written it at his suggestion and that he hoped 


that the President approved; and that the President had written 
on it the usual form of notation for such action: “Approved. 


W. W.” 


During the day Butler came to see me, and I agreed with him 


to insert the word “international” in Article 23 (a), as had been 


requested ina letter from Walters of that date, and also to make 


each of the two sentences of Article 26 a separate paragraph. A 
memorandum of these corrections was drawn up and sent out in 


due course by the Secretariat of the Commission on the League 


of Nations. 


House told me that day that Cecil was very much “up in the 


‘ air” about the changes that the British wanted in the Covenant 
‘for the Dominions ; the Dominions felt that they were being dis- 


lcriminated against although they did not expect to be on the 
Council and did not want to be.1 House suggested to Cecil that 


he should see President Wilson in the matter. 


Cecil telephoned me during the next day (April 23) that the 
* Canada became a Member of the Council at the Eighth Assembly (1927). 


482 THE DRAFTING OF THE COVENANT 


British had prepared a Memorandum of the changes desired by 
them which they wished circulated to the members of the Com- 
mission; and that President Wilson had agreed that this Memo- 
randum might be circulated and that he would not oppose it. 


Accordingly I told Cecil that I would have it circulated and later i 
on Butler came in and left it with me. I took the paper over to ~ 


House and showed it to him and he said that it was quite all 


right and that the President did not feel that he wanted to oppose 4 


the British in the matter. House told me that he had sent word 
to Cecil that while the President took this view, he also thought 
- that the position which I had taken in the matter was right and 
had approved of it. 

It will be necessary to make some comments on this Memo- 
randum, particularly as it was not the end of the story. It was 
of course circulated as the British desired and read as follows: 


The British Delegation proposes the following corrections in 
the present draft of the Covenant: 

To substitute the words “Members of the League” for the 
word “States” in Articles Iv, v, VIII, XV, XVI and xxv1 where that 
word is used to indicate States which are members of the League: 
and in Article Iv paragraph 1 for the words “States which are 
members of the League.” 

As it will be necessary to circulate the Covenant to the Con- 
ference during the next few days, it is proposed, unless objection 
is taken to the above suggestions, to include them in the text as 
circulated. If, however, any Member of the Commission takes 
such objection, he is requested to ask the President of the United 
States to call a meeting of the Commission to discuss them. 


The proposals of the British were not stated with complete 
accuracy in this Memorandum, for it does not distinguish be- 
tween the singular and the plural. As I pointed out above,? 
“Members of the League” was proposed to be substituted for 
“States” in certain instances and “Member of the League” for 
“State” in others. The effect of the Memorandum, however, was 
to propose all the changes indicated by Cecil’s letter of April 21 
above quoted 3 and also three other similar changes. One of these 
was in the third paragraph of Article 16; this had apparently 
been overlooked previously, as the expression ‘“‘covenant-break- 
ing State” is precisely the same as in the first paragraph of that 


*See p. 478 sq. 


ae. 


LATER CHANGES 483 


Article. The other two additional changes were in the second 
and fifth paragraphs of Article 8 (the Disarmament Article). 

In view of Mr. Wilson’s acquiescence in the ideas of the 

‘ British on behalf of the Dominions there was nothing further for 

Re to do regarding the changes; the question left was merely 
whether any objections would be made by any other delegation; 
and of course a new print of the English text was at once made 
by the American Printing Office, embodying all the changes to 
date, including those wanted by the British, as it was to be as- 
sumed that they were to be accepted. 

I remained of the opinion, however, as I had intimated in 
my letter to Cecil of April 22, that the expression ‘“covenant- 
breaking Member of the League’ in Article 16 should not be 
used. 

As the British Memorandum above quoted stated, it was open 
to any delegation represented on the Commission to object to the 
British changes and even to request a meeting of the Commis- 
sion to consider them. The position which the French took in 
the matter was quite closely connected with various other points, 
one of which interested some officials at the Quai d’Orsay more 
than it did the French Government. This was the wholly im- 
possible notion that Monaco should be invited, as one of the 
Neutral States, to join the League of Nations.1 

It appeared from some correspondence in the matter, which I 
need not set forth at length, that M. Pichon? had promised the 
Minister of Monaco at Paris that there would be an opportunity 
for the presentation to the Commission of the views of that gov- 
ernment regarding the League of Nations; and on March 31 the 
Minister, Count Balny d’Avricourt, had written to President . 
Wilson in the matter. These papers had been referred to me 
on April 16 by the President and I had written in reply to the 
effect that no invitation had been sent to Monaco and that so far 
as I was aware neither the Commission nor the American Secre- 
tariat had ever known anything about the statement or promise of 
M. Pichon. It was not until a week or so later that I realized that 
this matter of the membership of Monaco in the League was 
troubling some of the French. 

On April 22 there had been sent out a draft of the English 
Report of the Commission which Mr. Wilson had approved and 

2A treaty had been signed on July 17, 1918, defining the relations between 
France and the Principality of Monaco. See Article 436 of The Treaty of 


Versailles. , , 
“Then French Minister of Foreign Affairs. 


484 THE DRAFTING OF THE COVENANT 


which (in its final form) is Document 32. Under the sam 
date the French Delegation presented this Note: 


Monaco might be added to the list of the thirteen invited Neu- 


COMMISSION DE LA SOCIETE 
DES NATIONS 


22 avril 1919 


NOTE DE LA DELEGATION FRANCAISE. 


Les Délégués francais a la Commission de la Société des Na- 
tions ont bien regu le projet de rapport qui leur a été transmis par 
le Secretariat américain. La lecture de ce projet leur a suggéré les” 
remarques suivantes : 

1°—L’“Annexe” qui doit suivre le texte adopté par la Com- 
mission le 11 avril 1919 et qui contient la liste des Etats neutres in- 
vités a accéder au Pacte n’a jamais été soumise a aucune délibéra- 
tion de la Commission. Le choix des 13 Etats portés sur cette” 
liste constitue une décision importante qui, dans la pensée des 
Délégués francais, devrait étre laissée, soit 4 la Commission, soit a” 
la Conférence. Il. leur parait donc preférable de ne pas insérer 
dans le rapport une liste d’Etats invites. 

2°—Sous le N° 6, le projet de rapport indique que la Commis- 
sion aurait adopté la résolution suivante: . 

“La Commission est d’avis que la Conférence demande au > 
Président de la Commission d’ inviter sept Puissances dont 
deux neutres, a désigner des représentants a un Comité chargé: 
a) de preparer des projets d’organisation de la Société. 

b) de préparer des projets en vue de l’établissement du 
siége de la Société. | 
c) de préparer des projets et l’ordre du jour en vue a 
la premiere réunion de l’assemblee.” F 


Cette résolution a été soumise a la Commission a la fin de la - 
derniére séance (11 Avril) sans qu'une résolution ait été prise a_ 
son sujet. Au cours d’une rapide discussion, plusieurs membres — 
ont fait remarquer qu’il appartenait a la Conférence de se mettre 
d’accord sur la composition et sur les pouvoirs de cette Commis- — 
sion. Les Délégués francais estiment, en consequence, qu’il est 
preferable d'indiquer que la proposition ci- “dessus visée, a été, | 
non pas “adoptée,” mais simplement “soumise” 4 V’approbation 
des membres de la Commission. : 


Point 1 of this Note was the French way of saying that 


———_ eee Oe 


LATER CHANGES 485 


trals. It was strictly correct, however, to state that the Annex 
had never been formally passed on by the Commission.? Point 
2 of the Note was put in because the French had some fear that 


' they would not be among the seven Powers to form the Organiza- 


tion Committee. As to the resolution, however, there was, as the 
French note suggested, at least some doubt as to just what had 
been assented to during the last five minutes of the final meeting 
of the Commission on April 11.? 

This French Note came in on April 23, the same day that the 
British sent out their Memorandum ? regarding their proposed 
changes. In response to this, calling it a Memorandum of the 
American Secretariat, the French at once sent this second Note: 


COMMISSION DE LA SOCIETE 
DES NATIONS 


Paris, le 24 avril 1919 


NOTE DE LA DELEGATION FRANCAISE, 


En réponse au mémorandum du secrétariat américain en date 
hier, la délégation francaise est d’avis qu'il y a intérét a demander 
a Monsieur le Président des Etats-Unis de vouloir bien réunir, le 
plus t6t possible, la Commission de la Société des Nations pour ex- 
aminer les différentes questions qui restent encore a régler, notam- 
ment celles auxquelles se référait la précédente note de la Délé- 
gation francaise et qui concernent la liste des Etats invités a 
accéder au Pacte ainsi que le Comité d’organisation de la Société. 


I repeat that during this period discussion of the French text 
with the French representatives was going on daily. 

I took the French Note of April 24 over to Colonel House and 
told him that I thought it would be a crime to have a meeting of 
the Commission at this time, to which he assented. I told him 
the French had said to me that they wanted to add Monaco as 
a Member of the League and that I thought that an assurance 
that France would be one of the Powers on the Committee of 
Organization would help to smooth the matter over. House said 
that I could give such formal assurance, in the name of the 


*See p. 466. 
*See pp. 467 sq. 
*See p. 482. 


486 THE DRAFTING OF THE COVENANT 


President, in writing if necessary. He asked me to see Cecil 
about the French Note, and I took it over to Cecil together with 


the reply which I had drafted. This reply (dated April 24), ‘ 


after some changes had been made by Cecil in its first paragraph, 
and after it had been approved by House and by Wilson, was 
delivered on April 25: 


Having considered the note of the French Delegation of this 
date, the President of the United States suggests that it is scarcely 
necessary to call a meeting of the Commission on the Society of 
Nations in connection with the two questions mentioned in the 
note of the French Delegation. 

So far as concerns the list of States to be invited to accede to 
the Covenant, it will be recalled by the French Delegation that the 
Commission at its final meeting was in accord that the thirteen 
neutral States previously invited to submit their views to the 
Commission should be likewise invited to accede to the Covenant. 
No suggestion was made as to any addition to this list desired by 
any member of the Commission, and it will in course be entirely 


; 


open to any Delegation to propose to the Conference any possible — 


addition to the list which may be desired or suggested. 

The French Delegation will also recollect that the resolution 
adopted by the Commission relative to a request to seven States 
to name representatives on a Committee of Organization of the 
League of Nations is by its terms merely a proposal by the Com- 
mission to the Conference. 

Accordingly, considering the very limited time now available, 
and also the very pressing engagements of the members of the 
Commission, the President of the United States suggests that any 
further discussion of the matters mentioned might preferably 
proceed before the Conference. 


Before the French answered this American Note, they told 
me what their reply would contain, namely, that they would agree 
that there should be no meeting of the Commission, that the ques- 
tion of the States to be invited to accede to the Covenant should 
be referred to their Foreign Office and that they wanted eleven 
Powers on the Organization Committee. Colonel House was 
disposed to agree to this last suggestion. I took it up with 
Cecil by telephone on April 26; his idea was that the Organiza- 
tion Committee should be chosen from the same Powers as the 
Council. At about this time the French Note was delivered: 


LATER CHANGES 487 


COMMISSION DE LA SOCIETE 
DES NATIONS 


25 avril 1919 


NOTE DE LA DELEGATION FRANCAISE. 


La Délégation américaine a bien voulu indiquer les difficultés 
quil y aurait a réunir actuellement la Commission de la Société 
des Nations; dans ces conditions, la Délégation francaise n’insiste 
pas pour qu’il y ait une séance mais elle tient a faire connaitre ici 
les questions qu’il y a lieu d’examiner. 

En ce qui concerne I’inscription, dans le rapport, d’une liste de 
13 Etats Neutres “invités a accéder au Pacte,” les Délégués fran- 
¢ais ne se croient pas autorisés a prendre une décision a cet égard 
et vont demander des instructions a leur Gouvernement pour savoir 
si celui-ci a des modifications a proposer au sujet de la liste précitée. 

Quant au Comité formé par les représentants de 7 Puissances 
pour préparer l’organisation de la Société des Nations, les délégués 
frangais estiment qu’il y aurait tout avantage a augmenter le nom- 
bre des membres de ce Comité, de telle fagon que sa composition 
rappelle celle du Conseil de la Société. Si cette vue était adoptée, 
le Comité pourrait comprendre les représentants des 5 Grandes 
Puissances, de 4 Puissances Alli€es a intéréts particuliers et de 2 
Puissances Neutres. 


The French also made verbally their request regarding Monaco 
which was written out by Mr. Warrin as follows: 


La Délégation frangaise fait savoir le désir du Gouvernement 
francais que l’Etat de Monaco figure parmi les Etats invités a 
accéder au Pacte. 


But while these points raised by the French were adjusted, 
the objections of the French Delegation to certain of the changes 
proposed in the British Memorandum remained; and while these 
came up in connection with the final wording of the French 
text they were none the less specific objections to certain of the 
changes in the English text which the British wanted.* The 
French Delegation objected and finally stood on their objection 
to the substitution of ‘““Member of the League’ for “State” in 
Article 16 (thrice) and also to the similar change in the second 
paragraph of Article 8. The British were willing to yield so 
far as Article 16 was concerned, so that the real point of differ- 


*See p. 482 sq. 


488 THE DRAFTING OF THE COVENANT 


ence was as to the second paragraph of Article 8, which then — 
read as it now reads: , 


The Council, taking account of the geographical situation andl 
circumstances of each State, shall formulate plans for such reduc- 
tion for the consideration and action of the several Governments. 


The British would have here made the word “State”? “Mem- _ 
ber of the League.” The French insisted that the word should — 
be “Etat” in the French text and accordingly “State” in the 
English. It is at least arguable that ‘each State” means here 
each State of the world and accordingly might have a consid- 
erably broader signification territorially than “each Member of 
the League.” ? q 

The decision of the French Delegation was formally stated on _ 
the evening of April 26 and the British were obliged to yield — 
to the insistence of the French; this agreement was finally — 
reached on Sunday, April 27, when I was informed that the © 
British would waive the amendments in question if the French — 
insisted ; and I then agreed accordingly with M. de Sillac for the — 
French. So the second paragraph of Article 8 remained as — 
above quoted and “covenant-breaking State” was retained as the — 
language of Article 16. 

So the English text was again reprinted with these changes, — 
so to speak, changed back, and this text thus printed that night — 
was the text submitted to and passed on by the Plenary Session — 
of the Peace Conference of the following day, Monday, April 28. © 
This text formed part of the English Report of the Commission — 
(Document 32); in that Document the Covenant text is omitted, 
as it differs from the previous print (Document 31) in very few 
respects ; aside from the trifles mentioned at page 481, these were - 
only the British proposals regarding the substitution of “Members — 
of the League” for “States” etc., so far as Wilson and the French — 
had assented to them. Specifically, these were those listed above 7 
as first proposed by Cecil (except as to Article 16), plus a corre- 
sponding change in the fifth paragraph of Article 8. In Docu- 
ment 31 will be found indicated the text of the Covenant in the 
Report of the Commission, by means of notes to the various — 
Articles which had been in any way changed (Articles 4, 5, 8, 15 


a= 


SKS 


*Indeed, at one stage, the French for “State” here had been agreed on as 
“nays.” See Document 37. 
? See p. 478 sq. 


a 


LATER CHANGES 489 


and 26). Textually, these changes are all also in the final Treaty 


text (Document 34). 

. The fundamental idea of the British proposals was of course 
! to make the Dominions specifically and beyond doubt eligible as 
Members of the Council of the League. What is to be said as 
to the policy in this matter from the American point of view? 
Mr. Wilson, as I have told, yielded to the British wish and as was 
his habit when he agreed, he agreed whole-heartedly, for later on 
he signed this famous Memorandum for Sir Robert Borden: 


Notes oF A MEETING HELD aT PRESIDENT WILsoN’s House, 
May 6, 1919 


The question having been raised as to the meaning of Article 
Iv of the League of Nations Covenant, we have been requested 
by Sir Robert Borden to state whether we concur in his view, that 
upon the true construction of the first and second paragraphs of 
the Article, representatives of the self-governing Dominions of 
the British Empire may be selected or named as members of the 
Council. We have no hesitation in expressing our entire concur- 
rence in this view. If there were any doubt it would be entirely 
removed by the fact that the Articles of the Covenant are not 
subject to a narrow or technical construction. 

Dated at the Quai d’Orsay, Paris, the sixth day of May, rg1g. 


G. CLEMENCEAU 
Wooprow WILSON 
D. Lioyp GEORGE 


Let me first consider the legal situation of the Dominions 
from an international point of view at this time (1919). Tech- 
nically, there was not much doubt in the matter; the Dominions 
were simply parts of the British Empire and any international 
question that came up involving Canada or Australia or the 
others was strictly a question between London and the other 
Foreign Office, Washington or whatever one it might be. But 
the practical situation was slipping away from the legal status. 
True it was that any question along the Canadian frontier was 
a question between London and Washington; but we knew, and 
London knew that we knew, and so on with all the possible per- 
mutations of this progression, that the matter could not be set- 
tled except in accordance with the wishes of the Ottawa Govern- 
ment. The North West Frontier Commission with Lord Alver- 
stone voting against Canada, had become impossible of repeti- 


490 THE DRAFTING OF THE COVENANT 


tion in 1919. Furthermore, the Dominions had had their separate 
armies in the War, and very separate armies they were too.! 1 

As a direct result of all this, and even more important from — 
the present point of view, the Dominions had their separate rep- 
resentation at the Peace Conference. Obviously a changing 
situation was visible. What its outcome would be, no one knew. 
The outcome within the British Empire was perhaps in theory the | 
business of no outsider; but any change in the structure of the — 
Brittsh Empire inevitably must have its repercussions interna- 
tionally. Indeed from the point of view of reality, such reper- 
cussions actually had arrived. Canadian sentiment was a thing — 
to be considered by itself, perhaps because it agreed with British — 
sentiment and perhaps because it did not. It is to be remem- — 
bered incidentally that the Irish Question at this time was not © 
\settled. If W. M. Hughes could say, as he did at a meeting of © 
the Council of Ten, that the next time Britain went to war © 
Australia would go or not as she saw fit,” certainly this remark 


gave cause for thought to statesmen of other countries. The 


effect of such an attitude is not limited to the relations between — 
London and Melbourne. 
From an American point of view this development, which 
“in its essentials is the gradual growth of a distinctive Dominion 
nationality, seems to me a wholly favorable one. 

Grave differences of opinion between the United States and © 
the British Empire internationally seem about as improbable as 
anything in the future can seem; the policy of both countries is 
primarily one of friendship for each other; but in the unlikely — 
event that serious differences should arise, Dominion senti- 
ment would in the last analysis almost certainly compose them. — 
Some of the larger World questions are questions also within the © 
British Empire and on these the opinion of Canada and of Aus- 
tralia is substantially that of the United States. . 

So when the League of Nations came to be framed the Brit- — 
ish Dominions were inevitably separate Members of the League. — 
This was perfectly illogical from the point of view of legal pre- — 
cedent, just as it was perfectly inevitable from the point of view — 


*T do not use the word “armies” as meaning armies in the field; I mean 
armies in the strict sense of organisations with separate commands, separate 
discipline, separate pay and separate staffs. British and French troops fought 
together in the same army in the field; so did British and American troops, so — 
did French and American troops; but the Dominion commands were almost 
as distinct from the British command as from the French command. 

®T suppose the remark was edited out of the minutes. 

* Now, of course, one should write Canberra. 


LATER CHANGES 491 


of common sense. This latter point of view was certainly the one 
to be accepted here and elsewhere in connection with the League, 
rather than any reasoning of subtle casuists unable to visualize 
any international status which had not already been described in 
law books. The League of Nations was a new institution and 
necessarily had to disregard various preconceived ideas or at 
least go outside of them. The true point of view in such a 
matter is that of Salisbury, when he assented to the Anglo- 
Egyptian settlement about the Soudan-and “joyfully agreed to 
the creation of a hybrid state of a nature eminently calculated 
to shock the susceptibilities of international jurists.” } 

Certainly the situation of the Dominions in the League of 
Nations is novel enough to please the most ardent foe of pre- 
cedent: The British Empire is a Member of the League and so 
are Canada and the others. Is that part of the British Empire 
which is Canada a part of that Member of the League which is the 
British Empire; or is that British Empire which is a Member of 
the League the British Empire minus Canada et al? The ques- 
tions which might be suggested by one of the subtle casuists are 
innumerable. The Covenant talks about disputes between Mem- 
bers of the League. Could there be a dispute between the British 
Empire and Canada, or between Canada and Ireland, or between 
Ireland and Italy? We do know that British Dominions may 
vote and have voted in the Assembly contrary tothe vote of what 
I will call for clearness the London Government. We do know 
that the arrangement which made Ireland a Free State was called 
a-Freaty and that the Irish registered it at Geneva and that the 
British Empire, or at least London, protested, the matter going 
no farther. Suppose the British North America Act were 
amended so as to give the Canadians greater autonomy than they 
have now, as is indeed suggested, would the Canadians register 
this at Geneva as a treaty amendment? Clearly the Irish could 
under their theory, for the Irish Treaty provides that the Free 
State shall have the rights of the Dominion of Canada and any 
increase in the Dominion rights is in effect an amendment to the 
Irish Treaty. 

One might go on indefinitely with these unprofitable specula- 
tions and queries. The fact is that the situation of the British 
Empire is more or less in flux with a tendency towards a gradual 
increase in the looseness of the relations between London and 


*Cromer’s Introduction to Sir Sidney Low’s Egypt in Transition, p. xiii. 


492 THE DRAFTING OF THE COVENANT 


the Dominion Capitals.1 Perhaps finally the Crown will be 
the only link; we have already seen that a great political treaty 
of vital importance to London, the Treaty of Locarno, does not 
bind Canada and the others, not even India. 

From the point of view of the American debates in 1919 and 
1920 about the League of Nations, of course the “six votes’”’ (now 
seven) was an effective slogan. No idea more fantastic or more © 
dishonest could be imagined than that which was behind the — 
slogan, namely, that the six votes were or could be controlled by _ 
London; and of course every student of the Covenant who ex- — 
amines the matter with an open mind realises that the votes 4 
mean nothing, as unanimity, with trifling and unimportant ex- — 
ceptions, is always requisite in the Assembly and in the Council — 
as well. And from the point of view of American policy the © 
formal recognition of the fact that the international attitude of — 
the British people as a whole is not controlled solely by London — 
is all to the good; whatever the result of this may be within — 
the British Empire is for the future. From the broader view — 
of World politics, Mr. Wilson’s decision to yield to the views of — 
the Dominions was a sound one. There were probably some — 
among the British who regretted it, as there were some who re- 
gretted the membership of the Dominions in the League because 
they feared and could not wholly foresee the ultimate changes — 
within the British Empire to arise from or to follow that — 
development. 

I have discussed the Dominions; but besides the Dominions — 
there was India, not very often mentioned. Very early in the © 
meetings of the Commission it had been agreed that India should © 
‘be a Member of the League. Mr. Wilson had acquiesced and no ~ 
one else seemed to care. k 

Now, Canada in all the essentials is a self-governing country; — 
but no one by any stretch of language could say this of India then, — 
or even now. The answer was of course that India contains three — 
hundred million people and to say that those people should have ~ 
no representatives of their own in the League of Nations would 
be carrying the logic of governmental representation very far. — 
The Government of India is indeed even in London a separate © 
Government. Under the curious British system, the Secretary of © 
State for India and the Viceroy feel, if I may put it so, an 
Indian responsibility and not merely a British responsibility as 
to India; but even so, from the point of view of the theorist, the — 


* This was written before the Imperial Conference of 1926. 


LATER CHANGES 493 


_ membership of India in the League is an anomaly among anoma- 


lies. Particularly is this true when one considers for a little 
what this land that we call India is. We commonly think and 
speak of India as a unit; but the most casual student must recog- 


_ nize that it is a unit composed of a good many separate parts of 


varying kinds. I do not refer so much to the bewildering variety 
of languages and races and religions as to the Native States 
which are a third of India and which legally speaking have, some 
of them, far more independence than a Canadian Province, des- 
potisms tempered by a British Resident. We have become fa- 
miliar with the thought of an Imperium in Imperio but these are 
rather Jmperia in a Dependency. 

In the Annex to the Covenant the British Dominions and 
India appear in the list of the original Members of the League, 
out of their alphabetical order, under the British Empire, the 
Dominions being named according to their political rank, with 
Canada first and New Zealand last, and India following. The 
names of the five countries are slightly indented in the print; the 
legal difference between the Dominions and India and the States 
which are Members of the League is thus symbolically indicated 
by a quarter of an inch of difference in type alignment. 

The resolution which the Plenary Session of the Peace Con- 
ference adopted on April 28 regarding the Covenant was as 
follows : 


The Conference, having considered and adopted the amended 
Covenant presented by the Commission on the League of Nations, 
resolves : 


1. That the first Secretary General of the League shall be 

Honorable Sir James Eric Drummond, K.C.M.G., C.B. 
_ 2. That until such time as the Assembly shall have selected 
the first four Members of the League to be represented on the 
Council in accordance with Article 1v of the Covenant, Rep- 
resentatives of Belgium, Brazil, Greece, and Spain shall be 
members of the Council. 

3. That the Powers to be represented on the Council of 
the League of Nations are requested to name representatives 
who shall form a Committee of nine to prepare plans for the 
organization of the League and for the establishment of the 
Seat of the League, and to make arrangements and to pre- 
pare the agenda for the first meeting of the Assembly. This 

Committee shall report both to the Council and to the Assembly 


of the League. 


494 THE DRAFTING OF THE COVENANT 


It will be seen that this resolution filled up the two blanks 
in the Covenant,’ one in Article 4 by inserting the names of Bel- 
gium, Brazil, Spain and Greece (the French alphabetical order — 
being used) and the other in the Annex, appointing Sir Eric | 


Drummond as the first Secretary General. 

So far as the resolution relates to the Organization Commit- 
tee, it had, on account of the above mentioned ? discussions with 
the French, been modified so as to make the Committee consist of 
the same Powers as those to be on the Council. The original 
British draft of the resolution was sent to me in a letter of Philip 
Baker of April 22; it was the same as that adopted at the Plenary 
Session of the Conference and quoted above, except that it omit- 
ted the name of Sir Eric Drummond and that in its final para- 
graph it followed the resolution passed * by the Commission on 
the League of Nations at its last meeting, its opening words 
being: 


That the President of the United States of America be re- 
quested to invite seven Powers, including two neutral Powers, to 
name representatives who shall form a Committee to prepare 
plans, etc. 


The French had suggested having eleven Powers on the Com- 
mittee instead of seven and Cecil’s view was a compromise, the 
nine Powers on the Council. When Cecil told me this on April 
26, he also asked me to take up with Colonel House the question 
of having the Council of Four agree to a resolution providing for 
the appointment of the Committee, also naming Sir Eric Drum- 
mond as the first Secretary General, and naming the four States, 
Belgium, Brazil, Greece and Spain to be represented on the 
Council. Accordingly I recast the British draft as to its last 
paragraph and inserted the name of Sir Eric Drummond, so that 
it read precisely as the Plenary Session adopted it; and I handed 
this to House who said that he would submit it to Wilson so that 
it would be adopted by the Council of Four on the morning of 
April 28. 

I also gave a copy of the resolution to Wiseman who said that 
he would take it up with Lloyd George. 

In connection with the Plenary Session of April 28, there 
was some fear that the Belgian claim for Brussels as the Seat 


*For the text reported to the Plenary Session of the Peace Conference, see 
Document 31. 


? See p. 484 sqq. 
* See p. 467 sq. 


: 
4 


- 


LATER CHANGES 495 


of the League might be raised. In Philip Baker’s letter of April 
22 to which I have alluded, he wrote on this matter as follows: 


A rumor has come to us that the Belgian Delegation intend 
to force a vote in the Plenary Conference on the question of 
whether the Seat of the League ought to be placed at Brussels 
or Geneva, and that they are canvassing in favour of Brussels. 
This may become serious, especially if the French Government 
intend to embarrass the Powers who are most in favour of the 
League. Lord Robert asks me to suggest to you that it may be 
worth your while to call the attention of Colonel House to this 
matter, and to ask him whether he thinks that M. Hymans should 
be approached about the matter before the Plenary Conference, 
and whether some canvassing of the other Powers in favour of 
Geneva might be worth while. Since it is proposed that Belgium 
shall be one of the first four members of the Executive Council, 
and that she shall also be represented on the Organization Com- 
mittee, it seems to me unreasonable of her to be so insistent about 
Brussels. 


Nothing came of this however ; very likely Cecil saw Hymans 
about the matter as House suggested to Wiseman; at any rate 
there was not a ripple about it at the Plenary Session for Hymans 
there accepted Geneva as the Seat of the League. 

I print as Document 33 (using some of the French version) 
that portion of the Protocol of the Plenary Session of the Peace 
Conference on April 28 which relates to the League of Nations.? 
The Meeting had also some Labor clauses on its agenda. So far 
as the Covenant was concerned, everything went very smoothly. 
The President made a speech explaining the differences between 
the text of February 14 and the text now reported, reading it to 
a considerable extent from a memorandum which I had prepared 
at his request that morning, which was as follows: 


1. The arrangement of the articles has been somewhat changed 
so as to group together the various provisions relating to general 
subjects. 

2. The “Body of Delegates” is now called the “Assembly.” 

3. The “Executive Council” is now called the “Council.” 

4. The first paragraph of Article 1 is new. In view of the 
insertion of the Covenant in the Peace Treaty, specific provision 
as to the signatories of the Treaty which would become Members 
of the League and also as to the neutral States to be invited to 
accede to the Covenant were necessary. 


* Somewhat condensed. 


496 THE DRAFTING OF THE COVENANT 


The paragraph also provides for the method of accession by — 
the neutral States. . 
5. The third paragraph of Article I is new and provides for 
withdrawal by any Member of the League on two years’ notice. __ 
6. The second paragraph of Article Iv is new, providing for — 
a possible increase in the Council. q 
7. The last paragraph of Article 1v is new, providing specifi- — 
cally for the one vote for each Member of the League in the Coun- 
cil, which was understood before, and providing also for one rep- — 
resentative of each Member of the League. ; 
8. The first paragraph of Article v is new, incorporating ex- — 
pressly the provision as to unanimity in voting. 
9. In the second paragraph of Article vi has been added a ~ 
provision that a majority of the Assembly must approve the ap- — 
pointment of the Secretary General. ; 
10. The first paragraph of Article vir names Geneva as the © 
Seat of the League and is followed by the second paragraph which ~ 
gives the Council power to establish the Seat of the League else- — 
where. 4 
11. The third paragraph of Article vir is new, establishing — 
equality of employment of men and women. 
12. The second paragraph of Article x11I is new, giving in- © 
stances of disputes which are generally suitable for submission to ~ 
arbitration. { 
13. To Article x1v, regarding the establishment of a Perma- — 
nent Court of International Justice, has been added to a clause ~ 
giving that Court power to give advisory opinions upon questions — 
referred to it by the Council or by the Assembly. ‘ 
14. The eighth paragraph of Article xv is new. This is the © 
amendment regarding domestic jurisdiction. Y 
15. Generally speaking, the provisions regarding the settle- — 
ment of disputes are unchanged in substance, although there has — 
been some change in the arrangement and in the language; and — 
the provisions in Article xv regarding publicity are somewhat ~ 
more explicit. 
16. The last paragraph of Article xv1, providing for expul-— 
sion from the League, is new. 
17. Article xx1, the Monroe Doctrine amendment, is new. 
18. In the second paragraph of Article xx1I are inserted the 
words, “and who are willing to accept it,” in order to make clear © 
that the acceptance of mandates is voluntary. 
1g. Article xx1II is a combination of former Articles xvui, — 
xx and xx1 of the old draft, with some changes of language, and — 
also contains the following conditions: 
Clause (b), providing for the just treatment of aborigines. 


en 


LATER CHANGES 497 


Clause (c), looking toward the prevention of the white slave 

traffic and the traffic in opium. 

Clause (f), looking toward progress in international preven- 

tion and control of disease. 

20. Article xxiv is Article xx1r of the former text, and the 
second and third paragraphs have been added to extend the func- 
tions of the League in aiding international co-operation. 

21. Article xxv is the Red Cross amendment and is new. 

22. Article XXvI now permits amendment by a majority of 
the States composing the Assembly instead of three-fourths there- 
of without changing the requirement of adoption by the States on 
the Council. 

23. The second paragraph of Article xxvI is new and was 
added at the request of the Brazilian Delegation in order to avoid 
constitutional difficulties in certain cases. It permits any Mem- 
ber of the League to dissent from an amendment, the effect of 
such dissent being a withdrawal from the League. 

24. The Annex is added, giving the names of the Signatories 
of the Treaty who will become Members, and the names of the 
States invited to accede to the Covenant. 


Baron Makino spoke for the Japanese, but did not press their 
equality proposal, leaving it to the future. Bourgeois presented 
and urged the French amendments to Articles 8 and 9, but when 
Pichon spoke later on he did not insist on them; and Pichon’s 
suggestion of an invitation to Monaco to join the League was 
peremptorily brushed aside by Clemenceau himself. When 
Pichon brought forward the proposal, Clemenceau seemed sur- 
prised. Pichon turned and said deferentially: “I only make 
the proposal if nobody objects.” Clemenceau rather brutally an- 
swered “You know that everybody objects.” This appears in the 
Protocol as ‘‘un échange de vues entre M. Pichon et le Président.”’ 

Various other speeches were made. The delegate from Hon- 
duras spoke in Spanish about the Monroe Doctrine. No trans- 
lation was made at the time, and it is very doubtful if any con- 
siderable percentage of the gathering understood him. The 
Honduran proposal, however, and an accompanying exposé, had 
been circulated in a French version which is substantially the 
same as in the Protocol (see Document 33). 

At this Plenary Session of April 28 one amendment to the 
text of the Covenant was adopted. This was on the proposal of 
President Wilson and made the first paragraph of Article 5 read 
as follows: 


498 THE DRAFTING OF THE COVENANT 


Except where otherwise expressly provided in this Covenant _ 
or by the terms of the present Treaty, decisions at any meeting — 
of the Assembly or of the Council shall require the agreement of 
all the Members of the League represented at the meeting. 


ye 
| 
. 
¥ 


The amendment inserted the words “or by the terms of the 


present Treaty.” 1 The change was necessary, for the Treaty of 
Versailles provides in certain cases that the Council may act 
by a majority vote ? as, for example, in all matters dealt with in 
the Annex to the Saar Basin clauses. The subsequent incorpora- 
tion of the Covenant in three other Treaties of Peace in pre-— 


cisely the same language made the expression technically inaccu-_ 


rate; the stated exceptions when the Council may act by a ma-— 


jority are not in one treaty of peace but in four. ?, 


The Covenant was now ready for insertion in the Treaty of — 
Versailles, the text of which as a whole was arranged, assembled — 
and coordinated by the General Drafting Committee ? of the Peace ~ 
Conference, composed of Mr. Hurst, Dr. James Brown Scott, — 
M. Fromageot, Signor Busatti and Mr. Nagaoka. 


The first form of the Treaty of Versailles as an entirety was A 


| 
| 


the Draft Treaty which was presented to the German Delegation 
at Versailles on May 7; this document was called “Conditions — 
of Peace.”’ It is well known that as a result of the written nego- — 
tiations carried on between Germany, on the one hand, and the q 
Allied and Associated Powers, on the other, various modifica- — 


tions, some of them of much importance, were made in the terms 


imposed on Germany, prior to the signature of the Treaty of 
Versailles on June 28. The Covenant of the League of Nations, — 
however, which became Part I of the Treaty, had reached almost ~ 


literally its final form; but for the sake of completeness the triv-— 


*As Wilson proposed the amendment, it read: ‘or by the terms of this © 


Treaty,’ but I have quoted the final text. In the French account it reads “ou 
du présent Traité” which became “ou des clauses du présent Traité.” 


See “The League of Nations and Unanimity,” by Sir John Fischer Wil- 


liams, in A.J.J.L., Vol. 19, p. 475. 


*The work of this Drafting Committee was a good deal more extensive ] 
and important than can here be set forth. The Commission on the League of © 


Nations reported directly to the Peace Conference in Plenary Session; but 


generally the various Commissions and Committees were instructed to submit — 


with their Reports detailed Treaty clauses to be passed on by the Council of 


Four; those clauses usually required more or less redrafting, even when the © 


Council of Four did not change them by directions of one sort or another, 
which they frequently did. Furthermore, there were important clauses of the 
Treaty which did not originate with any Commission or Committee; but it is 
outside the scope of this work to speak of the drafting of the Treaty generally 


and of the work of the Drafting Committee in that connection. ; 


ee or, 


LATER CHANGES 499 


ial changes that were made up to the signature of the Treaty 
are to be mentioned. 
As adopted by the Plenary Session of April 28, the Cove- 
nant in the first paragraph of Article 4 read as follows: 


| The Council shall consist of Representatives of the United 
| States of America, of the British Empire, of France, of Italy and 
of Japan, together with, etc. 


By the specific direction of the Council of Three,? given some- 
_ time before May 5, this language was changed by the Drafting 
_ Committee 2 so as to read: 


The Council shall consist of Representatives of the Princi- 
pal Allied and Associated Powers, together with, etc. 


| The idea was that perhaps Italy, whose delegates were then 
__ absent, would not sign the Treaty, in view of the differences about 
_ Fiume and other matters, and that if so, Italy should not be spe- 
cifically named as a Member of the Council of the League. The 
use of the expression “the Principal Allied and Associated 
Powers” requires reference to the opening words of the Treaty 
of Versailles which define the expression as meaning the five 
_ Powers named. It was thought, however, that if Italy did not 
sign the Treaty, the definition in the opening words could be 
changed so as to omit Italy and define the expression as includ- 
. ing simply the four other Powers. So far had this idea been 
| carried at one stage of the Treaty proof, as I shall tell more in 
b 


detail below, that the name of Italy in the Annex to the Covenant 
had been taken out of the list of Signatory Powers and put among 
the names of the States invited to accede to the Covenant. 
So the text of the Covenant in the Treaty uses the expression 
“the Principal Allied and Associated Powers” in Article 4. 
. This seems to me to be a real blemish from two points of view; 
; technically, because it requires an examination of the language 
) of the Treaty of Peace, outside of the Covenant itself, to deter- 
mine what States are named in Article 4 as permanent Members 
of the Council; from a larger point of view, it is unfortunate that 
a document intended as a permanent charter of peace should 
contain an expression which is essentially temporary and of his- 


* Wilson, Lloyd George and Clemenceau. : \ 
? Meaning here and hereafter the general Drafting Committee of the Peace 
Conference, above mentioned. 


500 THE DRAFTING OF THE COVENANT 


torical interest only, relating to the later phases of the World 
War and its conclusion. 
The only other changes in the English text made before the 
“Conditions of Peace,’’ doubtless by the Drafting Committee, 
were as follows: 


1. In the Preamble, “The High Contracting Parties” became 
the opening words, so as to agree with the French version. ; 
2. In Article 6, third paragraph, the word “the” before “staff” 
was stricken out. : 
3. In Article 15, first paragraph, the words “in accordance — 
with Article 13” were substituted for the words “as above”. 
4. In Article 22, paragraph 5, “conscience and religion” in-— 
stead of “conscience or religion”. . 


The Annex also differs in some trifles: it is headed simply 
“Annex” instead of “Annex to the Covenant’; and in the list 
of States Czecho-Slovakia appears after Siam in the French al-— 
phabetical order and not after Cuba; and “Serbia” is corrected + 
to Serb-Croat-Slovene State. 

One incident in connection with the Covenant text occurred — 
just before the “Conditions of Peace’ were presented to the 
Germans on May 7; it seems worth telling, though no change in © 
the language of the Covenant resulted. 

The first meeting of the Organization Committee mentioned — 
in the resolution of the Plenary Session of April 28 was held 
on May 5, 1919. The decision to hold this meeting was reached 
at a luncheon at Colonel House’s on April 30. Cecil there drew © 
up this letter for President Wilson to send out to the nine 
Powers ? named for the Council: 

Siti 

The Plenary Conference of the 27 inst. under the presidency ~ 
of M. Clemenceau decided that a Committee of Nine should be © 
appointed to prepare plans for the organization of the League of — 
Nations and for other purposes. I am to request that your Govern- — 
ment as one of the Powers designated to be represented on the 
Committee will be good enough to nominate a member of the Com- — 
mittee. The first meeting of the Committee will be held at the — 
Hotel Crillon on Monday the fifth of May at 3 o’clock. 


There was some discussion at the luncheon as to what should 
be done at the meeting of the Organization Committee and in the — 
*This correction was made after the printing of the Conditions of Peace. 


* United States, British Empire, France, Italy, Japan, Belgium, Brazil, — 
Spain and Greece. 


LATER CHANGES 501 


interval various proposals were drawn up by Sir Eric Drummond 
and others. As a result of these came the resolution which the 
Committee passed at its meeting of May 5 at the Hotel de Crillon, 
M. Pichon presiding: 


1. That the Acting Secretary General be instructed to pre- 
pare plans of organization of the League and submit them to 
the Committee. 

2. That a credit of £100,000 shall be opened immediately on 
the joint and several guarantee of such of the States represented 
on the Committee, subject to any approval necessary by law. 

2. (b) That the Acting Secretary General or such persons as 
he may designate in writing shall be entitled to draw on this credit. 

3. That the Acting Secretary General be authorized to engage 
a temporary staff and offices and incur such other expenditures as 
he considers necessary for carrying out the instructions of the 
Committee. 

4. That the Acting Secretary General’s salary shall be at the 
rate of £4,000 a year, with an allowance for frass de représentation 
of £6,000 a year. A house shall be provided for the Secretary 
General at the permanent Seat of the League. 

5. That the meeting be adjourned sine die, the Acting Secre- 
tary General being instructed to call the next meeting at such time 
and place as he shall think most suitable, having regard to the 
business to be done and the convenience of the members of the 
Committee. 


The meeting was a very brief one and I do not even have a 
list of all of those present representing the nine Powers. My 
Diary says that Viscount Chinda was there for Japan as Baron 
Makino was ill; House and Cecil represented the United States 
and the British. Sir Eric Drummond was present as Acting 
Secretary General. 

After this meeting was over and there were only a few of 
us in the room, including House, Cecil and Philip Baker, 
President Wilson came in. He said that he was very much dis- 
turbed about an addition which had been made in Article 22 of the 
Covenant. He said that he had been told of this by Hankey and 
that the addition had been made by direction of Clemenceau. 
Mr. Wilson said he had told Clemenceau that nobody could give 
such a direction, not even the Council of Three. The President 
then suggested that I should go over and examine the Treaty 
text and see whether there were any other changes. I told him 
that I would examine both the English and French texts and re- 


502 THE DRAFTING OF THE COVENANT 


port to him. With Philip Baker I went over to the Quai d’Orsay 
and got the French and the English texts from Hurst. They were 
printed as the fifth proof of the Treaty text and dated the same 
day, May 5. We returned to my office where these texts were 
read very carefully ; the comparison that was made was with the © 
texts as reported by the Commission on the League of Nations.* 

The change in the text which President Wilson had mentioned — 
in his conversation was the insertion of the words “and of the — 
territory of the mother country” in the fifth paragraph of Article — 
22 (the Mandates Article) ; “defense of territory” had also be- — 
come “defense of the territory” ; so that that paragraph of Article 
22 read as follows in the proof (the added words in italics) : 


Other peoples, especially those of Central Africa, are at sucha 
stage that the Mandatory must be responsible for the administra- 
tion of the territory under conditions which will guarantee freedom 
of conscience and religion, subject only to the maintenance of 
public order and morals, the prohibition of abuses such as the - 
slave trade, the arms traffic and the liquor traffic, and the pre- 
vention of the establishment of fortifications or military and naval — 
bases and of military training of the natives for other than police 
purposes and the defense of the territory and of the territory of 
the mother country, and will also secure equal opportunities for © 
the trade and commerce of other Members of the League. 


I at once made and sent up to the President this memorandum 
of the various changes, and also told Colonel House about them; z 
House was very much disturbed by the change in the position of 
the name of Italy in the Annex: 


The English and French texts of the Covenant in the Treaty — 
(fifth proof) have been carefully compared with the texts as re- — 
ported by the Commission. j 

The amendment to Article v adopted by the Conference has ~ 
been made. $ 

There is a change in language in Article 1v, of which you are © 
aware, namely, the substitution of “Principal Allied and Associ- — 
ated Powers” for the names of the Five Great Powers. 

The name of Italy has been taken from the list of signatories in — 
the Annex and placed in the list of invited States.? 

The change which you mentioned in Article xx11, fifth para- — 
graph, by the addition of the words, “and of the territory of the 
mother country” appears in the Treaty text. 


*For the English see Document 31; and for the French see Document 40. 
® After Denmark. 


—_— 


LATER CHANGES 503 


Otherwise, there are no differences except a few of a trifling 
nature, such as punctuation and corrections. 


The minor differences in the English Treaty proof were very 
carefully noted but I need not list them here. Some of them were 
the changes mentioned above 1 as having been made by the Draft- 
ing Committee; others were printer’s errors; none of them was 
of importance. 

The differences in the French proof, aside from a few trifles 


_ and printer’s errors, were similar to those in the English. The 
_ words added in the fifth paragraph of Article 22 were in the 


French “et du territoire métropolitain” ; and the position of the 
name of Italy had been changed also in the Annex so that “Italie” 
came after “Espagne.” 

In the evening President Wilson called me on the telephone. 
He said that he had read my memorandum and that he strenu- 
ously objected to the words added in Article 22 going in. I spoke 
to him about the changed position in the Annex as to the name 
of Italy and told him that the Italians would object very much 
to that and explained to him just what the effect was. He then 
said he would like that corrected but he was insistent that the 
other words should not remain in the Mandates Article and told 
me to take the matter up with Dr. Scott, our representative on 
the Drafting Committee. I went over to the Quai d’Orsay and 
saw Dr. Scott and told him the objection of the President to the 
language in Article 22, which Dr. Scott said would be altered. 
I also told him about the change in the position of the name of 
Italy and Dr. Scott said that would be rectified also. 

I went back to Colonel House and told him about what had 
happened. He was very much pleased and said it was the best 
hour’s work that had been done. While I was with him he tele- 
phoned the President and told him about it and repeated to me 
that the President was very much relieved. 

As Dr. Scott had said, the print in these matters was brought 
back to its former condition as reported by the Commission on 
the League of Nations both in Article 22 and in the Annex as 
to the position of Italy. This must have been done immediately ; 
because the ‘Conditions of Peace,’ the printed document pre- 
sented to the Germans on May 7, had been considered by a Plen- 
ary Session of the Peace Conference on May 6; and the English 
text of the Covenant in the “Conditions of Peace’ was (aside 


*See p. 500. 


504. THE DRAFTING OF THE COVENANT 


from printer’s errors which were corrected) literally and strictly | 


accurate and the same text as that of the Treaty of Versailles with 
the exception merely of the insertion of the word “air,” so that 
in Articles 1, 8 and 9, “military and naval’ became “military, 
naval and air” and similarly in Article 16 “military or naval” 
became “military, naval or air.” 

I may mention here that in the Treaty the Article numbers 
of the Covenant are all printed in Arabic figures and Roman 
numbers are used only in the Annex. I do not know why Ameri- 
cans are so fond of the Roman; but we are. Every American 
draft printed at Paris always used Roman numbers throughout. 
So did Mr. Wilson’s first draft which he typed in America. The 
French in their prints always used the Arabic and in the Treaties 
of Peace that style is happily adopted throughout. However, we 
have here, I suppose, more often thought of Article X than 
of Article 10. 

In one matter of spelling, the Drafting Committee over-ruled 


me, by adopting “Mandatory” throughout Article 22. The word — 


is there used as a noun and my preference was for the alternate 


spelling ‘“Mandatary”’; and all the prints of the English text made — 
under my direction had used this spelling. I think that the — 


Treaty of Versailles has now settled the usage in favor of the ‘‘o.” 
While “mandatory” as an adjective was of frequent use, the word 
was uncommon as a noun before 1919 in ordinary writing and 
the choice was then perhaps one of fancy. 

This is the end of my story of the English text of the Cove- 
nant of the League of Nations as it appears in the Treaty of Ver- 
sailles. That text with the corresponding French text, the lit- 
eral print! of the Treaty, will be found as Document 34. I use 


the word “‘iteral’” advisedly, for many printed copies of the © 


Covenant are not strictly accurate. 


*In Document 34, for convenience, I have numbered the paragraphs pursu- 
ant to the Assembly Resolution of September 21, 1926; but amendments to the 
Covenant made or proposed since the Treaty of Versailles came into force 
are not within the scope of this work. 


ee ee 


: 
| 


a 


CHAPTER XXXV 
THE FRENCH TEXT 


Tue Treaty of Versailles provides that its ‘French and Eng- 
lish texts are both authentic” (“les textes francais et anglais 
feront foi’). 

The formal decision that “the Peace Treaty should be printed 
in French and English languages, which should be the official 
languages of the Treaty’ was made on April 25 by the Council 
of Four. Much as the French wished otherwise, the British and 
American participation in the War and in its settlement and the 


' presence of President Wilson in Paris made it inevitable that the 


English language should be an official language of the Treaty 
of Peace. Naturally the decision was one which the French 
greatly regretted not only in itself but also because the writing 
of the Treaty of Versailles in French and in English of equal 
validity made those two languages the official languages of the 
League of Nations and also the official languages of the Perma- 
nent Court of International Justice, and perhaps to some extent 
marked the passing of French as the chief medium of diplomatic 
intercourse. 

This is not the place to discuss the language of the proceedings 
of the Conference of Paris generally and of its Commissions and 
Committees, of the Council of Ten and the Council of Four and 
the rest, and of those innumerable official and quasi official meet- 
ings of small groups which had so much to do with some of the 
results.+ 

Almost all the diplomats present from countries other than 
Great Britain, the United States and Japan, spoke and understood 
French. Some of these used English fluently, Clemenceau for 
example; some, like Orlando, knew but little English; on the 
whole, familiarity with our language on the part of the diplomats 
generally was not as common as might have been expected. Most 
members of the Japanese Delegation knew French, but they almost 
invariably used English. In the British Delegation there were 
representatives who were perfectly at home in French like Sir 


*See A History of the Peace Conference of Paris, edited by H. W. V. 
Temperley, vol. i, p. 253 sq., and also Baker, op. cit., vol. 1, chap. xii. 


595 


506 THE DRAFTING OF THE COVENANT 


Eyre Crowe and this was true of some of the American repre- 
sentatives like Professor Charles H. Haskins; but neither Lloyd 
George nor Wilson nor House spoke French and none of them 
could even read it except in a very limited way. So interpreters 
were often necessary; sometimes the discussions were bilingual, 
those who spoke in one language understanding the other; and 
occasionally French, very seldom English, was used alone. 

I have pointed out earlier * that the Commission on the League 
of Nations from the beginning worked essentially on an English 
text. During the first eight meetings of the Commission prior 
to February 13, the crude, hasty and imperfect French transla- 
tions of the English texts which were laid before the Commission 
from time to time had little official significance; they could not be 
regarded as having any greater dignity than Secretariat memo- 
randums. 

Accordingly the first French text of the Covenant which re- 
quires mention is one to which allusion has already been made, 
namely, the French text which was laid before the Plenary Ses- 
sion of February 14 as the equivalent of the Covenant English 
text of that date. This French text ? was doubtless prepared by 
the French Foreign Office (by which it was printed) in conjunc- 
tion with the French members of the Secretariat of the Commis- 
sion on the League of Nations. To a considerable extent it 
used and adapted the previous Secretariat translations of the 
English; but to a considerable extent also it disregarded those 
and went on its own. 

By the proceedings subsequent to February 14 the English 
text of that date was so recast and revised that this French 
text of February 14 is of little comparative value. But any one 
who examines the matter in detail will see that even where the 
English remained with little change the French was usually recast. 

I will give one instance of this. In the English text of Feb- 
ruary 14 the first paragraph of Article 4 read as follows: 


All matters of procedure at meetings of the Body of Delegates 
or the Executive Council, including the appointment of Commit- 
tees to investigate particular matters, shall be regulated by the 
Body of Delegates or the Executive Council, and may be decided 
by a majority of the States represented at the meeting. 


+See p. 128. 
*Tt will be found in Document 20, as Annex 11 to the minutes of the Tenth 
Meeting. See p. 270. 


ea = 


THE FRENCH TEXT 507 


This language remained almost unchanged in the final text 
_ of the Covenant as the second paragraph of Article 5, reading 
( this way: 


All matters of procedure at meetings of the Assembly or of the 

: Council, including the appointment of Committees to investigate 

particular matters, shall be regulated by the Assembly or by the 

Council and may be decided by a majority of the Members of the 
League represented at the meeting. 


Now compare the corresponding French texts. In the French 
text of February 14 the language was this: 


Toutes questions concernant la procédure a suivre par 1’As- 
semblée des Délégués ou le Conseil exécutif dans leurs sessions, 
y compris la constitution des Commissions chargées d’enquéter sur 
des cas particuliers, seront décidées par l’Assemblée ou le Conseil 
| a la majorité des Etats représentés a la réunion. 


In the Treaty of Versailles it reads thus: 


Toutes questions de procédure qui se posent aux réunions de 
l’Assemblée ou du Conseil, y compris la désignation des Commis- 
sions chargées d’enquéter sur des points particuliers, sont réglées 
par ’Assemblée ou par le Conseil et décidées a la majorité des 
Membres de la Société représentés a la réunion. 


There used to be a saying, ‘““There is an exception to every 
_ rule including this one’’; so there is one exception to all that I 
have said about the early French text; this is in regard to the 
_ Mandates Article, numbered 22 now and Ig in the February 14 
m draft. 

The origin of the language of this Article was outside the 
Commission on the League of Nations; it was the resolution * 
passed by the Council of Ten on January 30 before the Com- 
mission had met. I have told the story of this resolution 
in some detail in Chapter IX. Omitting the first two paragraphs 
of the January 30 resolution, the Mandates Article of the Cove- 
nant embodies almost literally the rest of the resolution 
(subject to the drafting changes necessary because of the dif- 
ferent character of the document) with the addition of a few 
words making it clear that the acceptance of a Mandate is per- 


*For the text, see p. 109 sq. 


508 THE DRAFTING OF THE COVENANT 


missive and of a phrase regarding freedom of conscience and 
religion. Then follow in the Mandates Article, two paragraphs 
regarding the drawing up of the Mandates and the Permanent 
Mandates Commission. 

Now the resolution of January 30 regarding Mandates had 
General Smuts as its author or proponent. It was written in 
English, discussed at a meeting of the British Delegation on 
January 29 and presented in English by Lloyd George at the 
meeting of the Council of Ten on January 30 and in English 
it was adopted. However, either at the time or later there was 
as a part of the records of the Council of Ten a French version 
of this resolution which was on file at the Quai d’Orsay and 
which I here print: 


Ue 


Prenant en consideration le passé de l’administration allemande 
et la menace que la possession par l’Allemagne de bases sous- 
marines dans un grand nombre de parties du monde ferait néces- 
sairement courir a la liberté et a la sécurité de toutes les nations, 
les Puissances Alliées et Associées sont d’accord pour déclarer 
qu’en aucune circonstance aucune des colonies allemandes ne devra 


x 


étre restituée a l’Allemagne. 


II. 


Pour des raisons semblables et plus particuliérement a cause 
des mauvais procédés de gouvernement employés, de tous temps, 
par les Turcs a l’égard des peuples qui étaient sous leur domina- 
tion, et des terribles massacres dont les Arméniens et autres peu- 
ples ont été victimes au cour des récentes années, les Puissances 
Alliées et Associées sont d’accord pour déclarer que l’Arménie, la 
Syrie,1 la Mésopotamie, la Palestine et l’Arabie doivent étre com- 
plétement séparées de l’Empire turc, cela sans préjudice du reégle- 
ment a intervenir pour les autres parties de l’Empire turc. 


III. 


Les Puissances Alliées et Associées sont d’accord pour dé- 
clarer qu’il y aurait lieu de mettre a profit l’occasion offerte par la 
nécessité de disposer des colonies et territoires appartenant a |’Alle- 
magne et a la Turquie, qui sont habités par des peuples encore in- 
capables de se diriger eux-mémes dans les conditions particuliére- 
ment difficiles du monde moderne, pour appliquer a ces territoires le 
principe que le bien-étre et le développement de tels peuples for- 
ment une mission sacrée de civilisation, et qu’il conviendrait, en 


“de Kurdestan” is omitted here, by some error. 


—_—z 


ee a 


+3 
a 


THE FRENCH TEXT 509 


constituant la Ligue des Nations, d’y incorporer des gages pour 
l’accomplissement de cette mission. 


IV. 


Aprés une étude attentive, elles estiment que la meilleure 
méthode de réaliser pratiquement ce principe est de confier la tu- 
telle de ces peuples aux nations développées qui, en raison de leurs 
ressources, de leur expérience ou de leur position géographique, 
sont le mieux a méme d’assumer cette résponsibilité; elles exer- 


ceraient cette tutelle en qualité de mandataires et au nom de la 
Ligue des Nations. 


V. 


Les Puissances Alliées et Associées pensent que le caractére 
du mandat doit différer suivant le degré de développement du peu- 
ple, la situation géographique du territoire, ses conditions écono- 
miques et toutes autres circonstances analogues. 


VI. 


Elles considérent que certaines communautés qui appartenaient 
autrefois a l’Empire turc ont atteint un degré de développement tel 
que leur existence comme nations indépendantes peut étre reconnue 
provisoirement, a la condition que les conseils et l’aide d’une Puis- 
sance mandataire guident leur administration jusqu’au moment 
ou elles seront capables de se conduire seules. 

Les veeux de ces communautés doivent étre pris en premiere 
considération pour le choix de la Puissance mandataire. 


VII. 


Elles considérent en outre que le degré de développement ot se 
trouvent d’autres peuples, spécialement ceux de l'Afrique Centrale, 
exige que le mandataire y assume 1’administration du territoire a 
des conditions qui garantiront, avec la prohibition d’abus tels que 
la traite des esclaves, le trafic des armes et celui de l’alcool, l’inter- 
diction d’établir des fortifications ou des bases militaires ou navales, 
de donner aux indigénes une instruction militaire si ce n’est pour 
la police ou la défense du territoire, et qui assureront également 
aux autres membres de la Ligue des Nations des conditions 
d’égalité pour les échanges et le commerce. 


VIII. 


Elles considérent enfin qu’il y a des territoires, tels que le Sud- 
Ouest Africain et certains iles du Sud Pacifique qui, par suite de 
la faible densité de leur population, de leur superficie restrainte, 
de leur éloignement des centres de civilisation, de contiguité géo- 


510 THE DRAFTING OF THE COVENANT 


graphique 4 l’Etat mandataire, ou d’autres circonstances, ne sau- _ 
raient étre mieux administrés qu’en étant soumis aux lois de 1’Etat : 
mandataire comme partie intégrante de cet Etat, sous réserve des — 
garanties prévues plus haut dans l’intérét de la population indigéne. 

Dans tous les cas, l’Etat mandataire devra envoyer a la Ligue 
des Nations un rapport annuel concernant les territoires commis 
a sa charge. 


Just as the original resolution was used as the basis of the 
English text of the Mandates Article, so this French version of 
that resolution was used as the basis of the French text of the 
Article. This was as true of the French draft of February 14 
as it was of the final text. 

The decision taken by the resolution of January 30 was a 
political decision agreed to by the five Great Powers and the text 
of this decision was officially recorded in English and in French. 
The Covenant became the appropriate part of the Treaty for the 
incorporation of this decision and so far as it was possible to use 
the words of the resolution in the Mandates Article they appear 
in Article 22. 

I may say here that the French translation of the resolution 
of January 30 while quite literal is a very good equivalent of the 
English; in regard to one expression however, there is some basis 
for argument as to different meanings; “Le trafic de lalcool” 
is not precisely accurate for “the liquor traffic.” 

The subsequent French texts which I shall mention must of 
course be considered in relation to the state of the corresponding 
English text at the time. For clarity, I summarize here part of 
the story told elsewhere in detail. 

At the three meetings of the Commission on the League of 
Nations which were held in the latter part of March, the Cove- 
nant of February 14 had been gone over in detail and consider- 
ably altered. Some of the changes were adopted textually, others 
in principle. They included most of those agreed on at the meet- 
ing of March 18 between Wilson and Cecil. The textual and 
other changes were nearly all in English, but some of those pro- 
posed were in French. The English text, however, was the one 
under consideration. At the conclusion of those three meetings 
the whole text, with the proceedings and amendments of the 
Commission, was referred to a Drafting Committee whose 
powers, while nominally limited, were actually of a very broad 
character.* 


*See p. 351 sqg. and Chapters xxv to XXvII. 


THE FRENCH TEXT SII 


In preparation for the work of that Drafting Committee, 


_ Hurst and I prepared an English text with which was printed 


a French translation ; the English of this appears in this collection 
as Document 28. It is sufficient to say here of the French text 
that went with it that it was intended to lay before the members 
of the Drafting Committee a French equivalent of the English 
text which Hurst and I had written; it was prepared almost 
wholly in my office and purposely it was made in the form of a 
literal, and indeed quite slavish, following of the English; and 
accordingly its style, if I may put it so, was English, rather than 
French; so that French text may be said to have served the con- 
venience of the Drafting Committee, but no more than that. 

Now the result of the work of the three meetings of the 
Draiting Committee on April 1 and 2 as arranged by Hurst and 
myself, with the subsequent incorporation of the slight changes 
resulting from the discussion of the Red Cross amendment, was 
a new English text which went back to the Commission on the 
League of Nations for its consideration. That English text is 
Document 30 and some account of its preparation is elsewhere 
written.1 I may repeat here that while the changes subsequent 
to that draft were in the aggregate of a fairly considerable num- 
ber, still, almost all of its language is literally the language of the 
Covenant in the Treaty of Versailles. 

The English text was the only text passed on by the Draft- 
ing Committee, as a Committee. The idea was that the French 
officials would prepare an equivalent French text; so in accord- 
ance with my understanding with Hurst, it was arranged with de 
Lapradelle on the afternoon of April 3 that copies of the English 
text of the Covenant from the Drafting Committee would be 
available the following morning. M. de Lapradelle had been 
present at all the meetings of the Drafting Committee. 
Accordingly copies of the English text were delivered on 
the morning of April 4 and specifically to M. Larnaude and M. 
Veniselos, as members of the Drafting Committee. The English 
text of course did not then include what I may call the Red Cross 
changes in Articles 22, 23 and 24 (as there numbered) which 
have been told about in detail,? but everyone concerned knew of 
these changes, when they were agreed to on April 5. 

On April 7 M. de Sillac came to my office and left with me a 
copy of the French text as it had been drawn up. This French 


*See Chapter xxrx. 
* See p. 407 sq. 


512 THE DRAFTING OF THE COVENANT 


text is Document 36. It was of considerable significance; it was 
the first proposal of a definite French equivalent of the English. 
It received much consideration. Something should be said here 
as to its form and as to its substance. 

As to form, the French text divided the Covenant into six 
chapters with chapter headings, substantially as suggested by M. 
Larnaude at the meeting of the Drafting Committee ;1 but thal 
Committee, while adopting the arrangement generally, had notll 
adopted the chapter headings as such or the division into cn 
ters, as such. In one respect the French text changed the arrange- — 
ment of the Articles, 10 becoming 8, and 8 and g becoming re-_ 
spectively 9 and Io. ; 

In style, the French was very much superior to anything that 
i 
: 


a 


had been written earlier; indeed in style as well as in language 
a very considerable part of this draft appears in the final French 
text. However, as an equivalent of the English text at the time 
(Document 30) this French draft was in many respects defective. - 

I compared the two in detail the day that I received the draft 
from M. de Sillac; and that evening Warrin and I spent two 
hours with Hurst going over the French text. The notes of dis- ' 
crepancies and of questions raised at this meeting were in sub- ; 
stance reproduced a little later by the British as a memorandum ~ 
entitled Sts between English and French texts of the 
Covenant,” the comparison being between the French of Docu- 
ment 36 and the English of Document 30. This memorandum ~ 
which follows was on the table at the Fourteenth Meeting of the © 
Commission on the League of Nations (April 10) : 


en eae 


PREAMBLE, General Structure. 


ARTICLE I, Paragraph 1. “Etats signataires.” 
“without reservation” omitted. 
“Adhésion” for “accession.” 


eS ae eS ee ee 


—_ 


ARTICLE 111. Paragraph I. “Délégués des Etats” for 
“Representatives of the Mem- 

bers.” 4 

Paragraph 3. “Etat” for “Member.” 

ARTICLE Iv. Paragraph 1. “au moment” for “from time 
to time.” H 

Paragraph 2. “temporairement” inserted. 

Paragraph 4. “La compétence s’étend” for 

“may deal.” 


* See p. 402 sq. 


ARTICLE 


ARTICLE 


ARTICLE 


ARTICLE 


ARTICLE 


ARTICLE 
ARTICLE 


ARTICLE 
ARTICLE 


ARTICLE 


ARTICLE 


V. 


VI. 


VII. 


XII-A. 
XIII. 


XV. 


XVI, 


THE FRENCH TEXT 


Paragraph 5. 
Paragraph 1. 


Paragraph 2. 
Paragraph 2. 


Last paragraph. 
Paragraph 4. 


Last Paragraph. 


English Article x. 


English Article v11t. 


Paragraph 1. 


Paragraphs 2 and 3. 


Paragraph 4. 
Last paragraph. 


English Article 1x. 
Paragraph 1. 


Omitted. 
Paragraph 1. 


Paragraph 2. 
Paragraph 3. 
Paragraph 5. 


Paragraph 9. 
Paragraph 1. 


513 


Omits “as a member” and 
“specially.” t 
concernant” for “at meetings 
of.” 

Omits “at the meeting.” 
“Choisi par l’Assemblée sur la 
proposition du Conseil.” 
Omits “international.” 

“Etats associées” for “mem- 
bers of the League.” 
“ses représentants” for 
tending its meetings.” 
transposed here. 

Omits “existing.” 


“ce 


at- 


Omits “national” after “arma- 
ments.” 

Change of wording “En vue 
d’en assurer |’exécution.” 
“prendre des mesures” 
“advise.” 

“La plus franche et la plus 
complete.” 

“cc | ” 

Tous renseignements. 


for 


“Dans le présent ou |’avenir” 
for “immediately . . . or not.” 
“Etats contractantes” for 
“Members of the League.” 


“susceptible de” for “suitable 
fOr:, 

“question” for “‘whole subject 
matter.” 

Fails to bring out that only 
examples are given. 
“explications des Parties” for 
“explanations regarding the 
dispute.” 

Omits “facts.” 

Omits “solely.” 

Inserts at end of first para. 
“et cesse d’étre représenté 
dans tous les organes de la 
Société.” 


514 THE DRAFTING OF THE COVENANT 


Paragraph 2. “Etats adhérents.” Also in 


XVII. | 
Paragraph 3. “indiquer” for “recommend.” 
Paragraph 5. Inserts “sur la demande du 


Conseil” and “avec toutes les 
facilités possibles.” . 
Omits “which are co-operating 
to protect the Covenants of the 


League.” 
ARTICLE Xvil. Paragraph 1. Omits case when neither State 
is Member of the League. 
ARTICLE XVIII. Omits “hereafter.” ri 
ARTICLE XIX. “Obligations” for “conditions.” 
ARTICLE xxi. Last paragraph. “bureau” for “commission.” 
“Par lui” inserted after 
“charge.” 
ARTICLE XXII. (c) and (d) “controle” for “supervision.” 
(f) “combattre” for “control.” 
ARTICLE xxii. Paragraph 1. “autres” for “such internation- 
aly | 
ARTICLE XXIV. “santé publique.” 


One other comment should be made on this French text; it © 
recast somewhat the French of the Mandates Article (then 21), 
thus departing from the French of the resolution * of January 30. — 

Hurst and I discussed somewhat the advisability of having — 
a meeting of the Drafting Committee to consider the French text, ~ 
but the time available before the Commission on the League of © 
Nations was to meet was too limited for this to be possible; and ~ 
in a talk with Cecil three days later and a few hours before the © 
Fourteenth Meeting of the Commission on April 10 we agreed — 
that if the French then brought up the matter of a French text ~ 
the question would simply be referred to the general Drafting 
Committee of the Peace Conference. . 

However, events took another course, and, as I have shown,? — 
at the Fifteenth Meeting of the Commission on April 11 Lar- 
naude and I were appointed a Committee to prepare a French © 
text. Earlier that day the matter had been incidentally mentioned 
by Hurst when we met for another purpose. Hurst said to me 
that M. Fromageot, who with Hurst was a member of the general — 
Drafting Committee of the Conference, had been spoken to about — 
making a French text of the Covenant. Fromageot had re- — 


* Quoted p. 508 sqq. 
2 See p. 439 sqq. 


THE FRENCH TEXT 515 


_marked to Hurst about the Preamble in particular which he 
_ thought should be in a different form in French. In reply Hurst 


had said that the Preamble had been written by Wilson and that 
it would be best to make a very literal translation of it. I told 
Hurst that in my view his advice was wise, as usual. 

I refer here again to the discussion regarding the French text 
which is recorded in the minutes of the Fourteenth Meeting of 
the Commission on the League of Nations (although, as I think, 
it took place at the Fifteenth Meeting).1_ That record shows 
beyond doubt that the English text at that stage was the only 
official text. Cecil, regretting that he could not accept the French 
text, said that “the work throughout had been carried out on the 
basis of the English text” and accordingly “the English text rep- 
resented the views of the members of the Committee”; Wilson 
said “the English text was at present now the correct one’; and 
Cecil recalled the fact that “the French text had never even been 
presented to the Drafting Committee”; and Veniselos said that 
“if the two texts did not agree, the French text should be the one 
altered,” which followed a previous remark of Orlando to the 
same effect. 

It is necessary to point out here just what the situation was 
at this time, April 12. The Commission on the League of Na- 
tions had held its final meeting the night before and had adopted 
a definitive English text? which differed somewhat, notably by 
the addition of the Monroe Doctrine amendment, from the text 
from the Drafting Committee (Document 30). The latest, in- 
deed the only, French text in existence (Document 36) was sup- 
posed to be the equivalent of the text from the Drafting 
Committee, but, as I have shown above, there were numerous 
discrepancies and, even aside from those, of course the later 
changes by the Commission had to be taken into account. 

The aim of the French text Committee, of which Larnaude 
and I were the members, was expressed to me by Cecil in a 
message which he sent me this day, on his departure for London, 
thus: ‘““The sole object should be to bring the French text into 
complete substantial accord with the English.’ Nothing could be 
more clear or correct than this in its statement that the English 
text at this time was authoritative and its French equivalent was 
yet to be finally written. 


*See p. 439 sqq. aye 
*See Document 31, which incorporates a few of the “Later Changes” as 


explained in the opening pages of Chapter xxxXIV. 


516 THE DRAFTING OF THE COVENANT 


During the next two or three days Butler and Warrin and 
I devoted a good deal of time to the French text (Document 36), 
making notes on it. We had before us of course the British 
“Note of Discrepancies’? which I have quoted? and also these ~ 
“Observations de la Délégation Belge relatives au Texte du 
Comité de Rédaction” which, like the British, resulted from a 
comparison of the English of Document 30 with the French of 
Document 36: 


OBSERVATION GENERALE.—Les textes frangais et anglais ne con- 
cordent pas absolument; nous signalons des différences. Peut- 
étre en existe-t-il que nous n’avons pas remarquées. [II parait 
nécessaire pour éviter des difficultés de réserver le caractére 
d’authenticité a l’un des textes. 

PREAMBULE. Le text francais comporte l’engagement général 
de ne pas recourir a la guerre. Or le Pacte n’interdit la guerre 
que dans des cas déterminés, c’est ce qu’exprime le préambule 
anglais qui parle d’ “obligations not to resort to war.” 

Les auteurs du projet francais ont ils eu en vue une obliga- 
tion morale plus étendue que la promesse juridique? II convient en 
ce cas de préciser et en tous cas d’accorder les deux textes. 

ARTICLE I. TIer alinéa: Le texte francais est plus logique 
que le texte anglais qui considére comme membres de la Société 
les Etats invités sans mentionner la condition qu’ils aient accepteé. 

2e alinéa. Amendement: supprimer de self-government com- 
plet; intercaler aprés Colonie “ayant des institutions représenta- 
tives.” 

En disant tout Etat de “self-government” complet, Dominion 
ou Colonie, le texte frangais n’impose la condition de self-govern- 
ment qu’aux Etats; il semble méme en faire une qualité distinctive 
des Etats par rapport aux Dominions ou Colonies. C’est l’indé- 
pendence absolue. 

Le texte anglais vise au contraire en parlant de “self-governing” 
l’organisation démocratique de pouvoir, et fait de l’existence d’in- 
stitutions représentatives une condition pour les Dominions ou 
Colonies aussi bien que pour les Etats. 

ARTICLE 6. Amendement: remplacer “assiste en cette qualité 
a toutes les séances” par “exerce les fonctions de secrétaire a toutes 
les sessions de l Assemblée et du Conseil.” Le texte anglais est 
dans ce sens. Il ne parait pas nécessaire que le Secrétaire général 
assiste a toutes les séances. 

ARTICLE 8. Amendement: aprés politique, ajouter “actuelle.” 

Le texte anglais parle de “existing political indépendance,” ce 
qui signifie sans doute l’indépendance politique actuelle de ses 


*p. 512 sqq. 


THE FRENCH TEXT 517 


membres, telle qu’elle existe actuellement et non telle que ses mem- 
bres pourraient un jour la souhaiter. 

ARTICLE 9. ler alinéa, amendement: remplacer: “J’exécution 
par une action commune des obligations internationales’ par “la 
nécessité de sanctionner par une action commune les obligations 
internationales,” “exécution” n’est pas une traduction exacte de 
l'anglais “enforcement.” 

30 alinéa, amendement : remplacer la premiére proposition par 
Ce plan doit faire Pobjet d’un nouvel examen en vue de revision 
éventuelle, au moins tous les dix ans. Ce texte est plus conforme 
au texte anglais. 

4e alinéa, amendement: remplacer articles par engins. 

ARTICLE 11. Amendement: remplacer “de nature a affecter 
les relations internationales qui menacent de troubler, etc.” par 
“affectant les relations internationales qui menace ....” Le 
pluriel menacent est sans doute une faute d’impression. 

ARTICLE 13. Deuxiéme alinéa, intercaler aprés sont déclarés 
susceptibles Vexpression généralement, ou en principe, a moins 
que l’on ne consente a supprimer dans le texte anglais l’expression 
“generally” qui atténue beaucoup la portée de la déclaration. 

ARTICLE 15. Sixiéme alinéa. 

Le texte frangais rend exactement l’expression anglaise if any, 
mais cette rédaction ne parait pas conforme a l’esprit des déci- 
sions de la Commission. Je propose que l’on substitue a la rédac- 
tion actuelle celle plus nette de l’article 13 f.f. 

Si Pune des Parties ne sy conforme pas, le Conseil propose les 
mesures qus doivent rendre les recommendations efficaces. 

Méme chose dans le texte anglais. 

ARTICLE 16. Premier alinéa: f.f., les mots “cesse d’étre 
représenté dans tous les organes de la Soctété”’ ne figurent pas 
dans le texte anglais; la proposition est intéressante, mérite d’étre 
adoptée. 

Troisiéme alinéa, remplacer indiquer par proposer; “indiquer” 
est une traduction inexacte de “recommend”. La rédaction fran- 
caise donne au Conseil le droit de fixer souverainement 1’im- 
portance des contingents, ce qui est contraire aux décisions de la 
Commission. 

Cinquiéme alinéa, deuxiéme proposition; la rédaction francaise 
différe de l’anglaise ; elle mentionne la demande du Conseil qui ne 
figure pas dans le texte anglais et d’autre part ne précise pas qu’il 
s’agit de forces coopérant pour assurer le respect des engagements 
du Pacte. 


The first meeting on the French text was on the afternoon of 
April 15 at my office at about 4:30. The French representatives 


518 THE DRAFTING OF THE COVENANT 


were MM. de Lapradelle, de Sillac and Clauzel. Major Butler and | 
Mr. Warrin were present. For reasons which were not wholly 
clear, we made almost no progress. We took up the Preamble and 
the first two paragraphs of Article 1 and some other points, and 
even those took till eight o’clock. Finally, de Lapradelle proposed 
that he and I should meet the following evening, to which I 
agreed. 

To connect up this account with the story of the English ~ 
text, I mention that it was at this time that I made my redraft of — 
the first two paragraphs of Article 1 in English.? : 

So, on the two following days, April 16 and 17, de Lapra- 
delle and I met at my office with no one else present (except 


two or three secretaries of my staff) and agreed on a revised © 


French text. The first evening we went as far as through Article — 
16 and in the interval between the two meetings I went over this — 
first night’s work with Butler, who seemed quite content with it. 

Of course it is impossible to say much in detail or even in 
outline of the discussions and the drafts of these conferences with 
de Lapradelle, or of the various memoranda which had been 
gotten up in preparation for them. The way the work was done 
was that the text of Document 36, cut up on separate sheets, was 
revised and corrected in red ink as we went over it phrase by 
phrase. The text that we agreed on must speak for itself; it is in 
Document 37 (the left column). 

Any one desiring to see just what revision was made should 
compare Documents 36 and 37. In making this comparison, how- 
ever, it must be remembered that Document 36 preceded the 
changes in the English text made at the Fourteenth and Fifteenth 
Commission Meetings of April 10 and 11; in the text of de Lap- 
radelle and myself these changes were taken into account and also 
those later changes in the English tentatively made at this time 
and formally approved later. These are described in Chapter 
XXXIV 2 and are incorporated in Document 31. 

There are, however, two or three details about this de Lapra- 
delle text, as I may call it, which I can mention. De Lapradelle 
tried his hand at a new translation of Wilson’s Preamble, a task 
which all the French found to be one of great difficulty. To turn 
this one long sentence of Wilsonian style into a French sentence 
which would read like a French sentence and not like a transla- 
tion and which would at the same time follow the English closely 


+See p. 474 sq. 
*See pp. 473-476. 


| 


THE FRENCH TEXT 519 


and have literary qualities worthy of the character of the docu- 
ment and of its aspirations for the future, so as to equal in this 
regard the gracefulness of Wilson’s writing, was the problem, 
one not yet solved. 

In writing the Mandates Article (now 22) de Lapradelle and 
I went back to the French of the resolution of January 30 of the 
Council of Ten. The use of this resolution here resulted in a very 
important printer’s error, which was not corrected till some time 
later, namely, the omission in the second paragraph of the words 
“et qui consentent a l’accepter” which, in their English form “and 
who are willing to accept it,’ had been in the Covenant since 
March 26. 

The precise meaning of the English and the French of the 
second sentence of Article 4 of the Covenant has given rise to 
some discussion and debate. It now reads as follows: 


_ English 


These four Members of the League shall be selected by the 
Assembly from time to time in its discretion. 


French 


Ces quatre Membres de la Société sont designés librement par 
lAssemblée et aux époques qu'il lui plait de choisir. 


At the time in question the English was the same except for 
the word “States’’ instead of “Members of the League” so that 
it read: 


These four States shall be selected by the Assembly from 
time to time in its discretion. 


The French of Document 36 translated the English as follows: 


Ces quatre Etats sont designés par l’Assemblée au moment et 
dans les conditions qu’elle juge convenables. 


De Lapradelle changed it to read thus: 


Ces quatre Etats sont designés par l’Assemblée de temps a 
autre, a son gré. 


It seems to me that this is a much better rendering of the 
meaning of the English “from time to time in its discretion” than 


520 THE DRAFTING OF THE COVENANT 


what came before or than the later and existing official text. Per-— 
haps the English would have been clearer from a French point | 
of view if it had continued to read as Hurst and I wrote it for the | 
Drafting Committee (see Document 28): ‘These four States 
shall be selected from time to time by the Assembly in its dis- 
cretion.” . 
It was a pleasure to work with a scholar of the deserved emi- — 
nence of de Lapradelle, a master of his own language, a lawyer | 
of the front rank and having with these qualities a personality of 
much charm. | 
While the text that de Lapradelle and I agreed on was not in © 
every respect exactly what I would have wished, it was very near ~ 
it. Written as it was, in preparation for my meeting with Lar- ~ 
naude, it was invaluable. 4 
This de Lapradelle text was printed immediately upon the ~ 
conclusion of our final conference, namely, during the night of — 
April 17. About four a.m. there had been finished a number of ~ 
copies } sufficient for the meeting which was set for six hours © 
later. 
April 18 was the day of my meeting with Larnaude at his © 
apartment in Neuilly. The following is what my Diary says as 
to this meeting: 


I spent the entire day in going over the French text with — 
Larnaude, the other member of the Committee to make a French © 
draft of the Covenant. We met at his apartment, 92 Boulevard ~ 
Maillot, from 10 a.m. to 1 p.m., and from 3:30 p.m. to 8:45 p.m. 


and from 10:30 p. m. to 2 a.m. During the morning and after- — 


noon there were present besides Warrin and myself and Larnaude, ~ 
de Sillac, Clauzel, de Lapradelle and Professor Rostand. Neither — 
de Sillac nor Clauzel was there in the evening. The French © 
seemed to me to try to delay the proceedings but we reached a 
final agreement. 


This record is naturally rather brief as it was dictated about — 
3 A.M. upon my return to my office after one of the most ex- 
hausting days imaginable. During the discussions there were 
many, many differences as to just what French was the equiva- — 
lent of the English text and some of these were important. I do © 
not think I yielded in any matter of moment. 

The chief question of literary interest to me was in regard to 
the Preamble of the Covenant which is almost as impossible a 
piece of English prose from a French point of view as could be 

*Only ten were printed. 


THE FRENCH TEXT 521 


written. The French reserved this to the last and I left it wholly 
to them. The translation was not made until after 1 a.m. when 
M. Rostand had an inspiration which all accepted with applause. 
Compare from the literary viewpoint the French (in Document 
37) of the Preamble as agreed on with Larnaude with that of the 
Covenant of February 14 and with the present text. 

Most elaborate and detailed notes had been taken by Warrin 
and myself of the text agreed upon with M. Larnaude at this 
meeting. These were gone over and checked with de Lapradelle 
at my office on April 19 and at the conclusion of our conference 
he said that we were entirely in agreement as to the language 
adopted at the meeting of the day before. We added the Annex, 
which had not previously been written in French, and which had 
not been specially considered the previous day. This text thus 
checked and agreed on was immediately sent to the American 
Printing Office to be set up and printed, a task which was not 
completed till late in the evening of April 20. It is reprinted 
in Document 37 (right column) and is, I think, literally and 
exactly the French text agreed to on April 18 by Larnaude and 
myself as checked over and compared with de Lapradelle the next 
day, including the Annex then added. 

In the meantime, the French had printed their version of the 
text agreed on by Larnaude and myself; I received a copy of that 
French version on April 20; I do not print that French version 
as a Document, but it is necessary to speak of it in detail as it 
substantiates the accuracy of the text which I have printed as 
that agreed upon by Larnaude and myself (Document 37, right 
column). The French version contained various errors of print- 
ing or proof-reading which were later corrected, mostly in the 
next French print; aside from such typographical errors, which 
require no attention, this French version was literatim et verbatim 
the Larnaude text which I have printed (Document 37, right 
column) except that in seven paragraphs there were some changes 
made by the French. Six of these were merely slight verbal 
corrections of French style, and for the sake of completeness, 


_ these are mentioned in a footnote.2 The other instance did 


*See in Document 20 Annex 11 to the minutes of the Tenth Meeting and 
Document 34. 

* Five of these six paragraphs read as in the next French print, Document 
38; these were Article 11, par. 2; Article 15, pars. 4 and 9; Article 17, par. 3; 
and Article 21. In Article 24, second sentence of first paragraph, the words 
after “international” were “qui seront créés ultérieurement seront placés sous 
la surveillance de la Société.” 


522 THE DRAFTING OF THE COVENANT 


change the sense; but it seemed on looking at it to be a printer’s 
error, for it was simply the omission of six words in the second — 
paragraph of Article 16, “contribuer aux forces armées destinées 
a”;? I mention it particularly because, whether it originated in a 
printer’s error or not, it resulted later in a recasting of the para- 
graph. I repeat that this French version of the text agreed on 
by Larnaude and myself shows conclusively that the version that I 
have printed of that agreement (Document 37, right column) is ~ 
correct. Both of these prints, I may mention (as was known at © 
the time), were defective in Article 22 in respect of the omission — 
of a few words, the printer’s error above mentioned. 2 

At least for the time being, however, there were the two differ- 
ing prints; in other words, there was at this time an American — 
print of the French text as agreed upon (see Document 37, right © 
column) this being what was considered by the British and our- — 
selves to be the French text of the Covenant, and there was also ~ 
the French print just mentioned, which was presumably the 
French idea of the French text. The problem now was to recon- 
cile all the differences between the two; and the successive prints — 
that were made at the one or the other printing office tended to 
that end. It will be appreciated that this problem was rendered ~ 
more complicated by the fact that between April 21 and April 27 — 
there was active discussion of the changes in the English text © 
desired by the British at the instance of the Dominions; these — 
changes were not wholly acceptable to the French, as I have told © 
elsewhere.? | 

On April 21 the French sent in their next print (Document — 
38).* This corrected a good many of the obvious discrepancies — 
in the previous print made by the French. Indeed, the only one 
of the original differences remaining which was of any partic- — 
ular consequence was in the second paragraph of Article 16. 
On the other hand, the French commenced to make changes — 
elsewhere in the text about as they saw fit. One result of this — 
was a great deal of work; each French print had to be gone over 
from beginning to end, word for word, to see if and where it had — 
been changed. 

In this later French print (Document 38) the number of © 


1 See the next French print, Document 38, which also omits these six words. 
7“Et qui consentent a l’accepter” in the second paragraph. See p. 510. 
*See pp. 478-488. 
*The printing of these successive French texts as Documents seems un- — 
necessarily cumbersome; but I have tried in vain to find a shorter method © 
of telling their story fully. 


a is 


THE FRENCH TEXT 523 


changes thus made was quite considerable; most of them, but 
not all, were either trivial or inconsequential; but some should 
be mentioned. 

There were some changes made in the Preamble, making it 
very nearly, though not quite, the final French form; and the 
last paragraph of Article 16 was recast in its present shorter 
form. The new translation of that paragraph is not a very literal 
rendering of the English, but its legal effect, I think, is exactly 
the same. 

This later draft also made a change in the rendering of one 
English expression which had given the French scholars a good 
deal of difficulty. In the second paragraph of Article 1 the Cove- 
nant uses the expression “fully self-governing State.” What is 
“fully self-governing” in French? 

Earlier the French had read “de self-government total’’ or 
“complet”; the Belgians had suggested “ayant des institutions 
représentatives”; de Lapradelle had written “s’administrant 
entierement lui-méme’’; in the Larnaude text it read “jouissant 
d'une entiére liberté de gouvernement”; now was introduced 
the phraseology destined to remain in the Covenant “qui se 
gouverne librement.”’ 

The point is a very interesting one, its chief difficulty aris- 
ing perhaps from the fact that hardly any two people would 
agree in a given case as to what “fully self-governing” means 
in English. 

At any rate when Butler and I went over this latest French 
print (Document 38) on April 22 we agreed to the changes above 
mentioned and also to accept the French print in respect of most 
of its variations from what I may call the American-British 
print (Document 37, right column). 

I had our American print of the French recast accordingly ; 
but even so there remained discrepancies, matters as to which the 
French and ourselves were not in accord. According to our notes 
made at the time, there were a dozen or so of these discrepancies * 


1 As noted at the time the corrections which we wished made in the French 
print were as follows: 

Article 2. Insert “par” before “un Conseil.” 

Article 5 Strike out “Etats” twice and in each case insert “Membres 
de la Socété.” 

Article 6 Strike out “des Nations” (4th paragraph). 

Article 8 Strike out “son” and insert “leur” (4th paragraph). 

Article 11 “menace” instead of “menacent.” . 

Article 16 In second paragraph, after “pour” insert “contribuer aux 
forces armées destinées a.” 

Article 21 “et” instead of “ou.” 


524 THE DRAFTING OF THE COVENANT 


(aside from printer’s errors and matters of punctuation) ; perhaps 
only three of them were of any consequence. 

There was one other variance between the two prints that 
should be noticed. The French continued to print their six chap- 
ter headings which we wished omitted. 

At this point was illustrated the enormous difficulty which 
existed during this period in arriving at any agreement on a 
french text to which could properly be applied the word “final.” 
Certainly so far as the American print and the French print 
agreed, the British and ourselves were clearly entitled to suppose 
that the language of the French text was, to that extent, sub- 
ject to no change. Neither of us were captious about this, how- 
ever, for when the French wanted to change their style without 
changing the meaning, as in the Preamble, we had accepted it 
and said nothing about it, and changed our own print. However, 
on April 23, there was delivered to me at my office (with 
the Note of the French Delegation of April 22 which I have men- 
tioned above)+ a French proof of the Report of the Commission 
on the League of Nations, this including of course a text of the 
Covenant which was presumably intended as the final French 
text; I print this Covenant text ? as Document 39. Now passing 
any questions of form, this text was materially and substantially 
changed from the French text previously agreed on, as an exam- 
ination of it will disclose. 

Look at the second paragraph of Article 16, for example, 
in Document 39 and compare it with the similar paragraph in the 
previous French print (Document 38). However, as this second 
paragraph of Article 16 contained one of the discrepancies of 
consequence between the American and French prints (see Docu- 
ment 37, right column, and Document 38) I will take a more 
glaring instance. 

In the French text which I received on April 21 (Document 
38) the second paragraph of Article 8 read thus: 


Article 22 First paragraph, instead of “en constituant la Société des 
Nations d’y incorporer’ read “d’incorporer au présent 
Pacte.” 
Second paragraph, insert after “responsabilité” the words 
“et qui consentent a l'accepter.” 
Fourth paragraph, instead of “d’abord” read “en premiére.” 
Sixth paragraph, instead of “de l’Etat” read “du.” 
Seventh paragraph, strike out “ci-dessus visés.” 
Article 23 (a) Insert “internationales” after “organisations.” 
Article 26 Instead of “de ceux” read “des Membres de la Société.” 
*See p. 484. 
* Without the Report as such. 


THE FRENCH TEXT 525 


Le Conseil, tenant compte de la situation géographique et des 
conditions spéciales de chaque pays, prépare les programmes de 
ces réductions. Les divers Gouvernements les examinent et en 
décident. 


This is exactly the language which I had agreed on with 
Larnaude (see Document 37). There is not the slightest doubt 
of this, because it was not only, as I have said, printed in these 
words in the paper from the French received on April 21, but also 
in the French text received from the French on April 20. Now 
in the text annexed to the Report which was received by me on 
April 23 (Document 39) the second paragraph of Article 8 is 
thus printed: 


Le Conseil doit tenir compte de la situation géographique et 
des conditions spéciales de chaque Etat pour établir les plans de 
cette réduction. Ces plans sont soumis aux divers Gouvernements 
pour qu’ils les examinent et agissent en conséquence. 


Now, who it was at the Quai d’Orsay that was making such 
changes as these I am not prepared to say. As I was one of the 
two members appointed by the Commission as a Sub-Committee 
to prepare the French text, I had the clearest kind of official 
right to say just what text should be in the French Report; 
but the thing that disturbed me most in the matter was not any 
question of courtesy or official position but the idea that anybody 
seriously dreamed that such tactics could succeed. Perhaps it 
was imagined that the text of this last print would not be ex- 
amined with sufficient care to see whether it was changed or not, 
or would be looked at only in those comparatively few places 
where there were thought to be discrepancies. 

However this may be, Butler came to my office on the same 
day (April 23) that this Report (Document 39) came in and 
went over it with Shepardson and myself word by word. We 
marked up a copy of it in red ink to show the way we wanted 
the French version, and I had this delivered to the French repre- 
sentatives ; it was understood that we would be informed the next 
day what attitude would be taken in regard to it. 

In order to show precisely what was done, I indicate in Docu- 
ment 39 the form of the text which was transmitted to the 
French; in those Articles (namely, Articles 2, 5, 6, 8, 16, 17, 21, 
22, 23), as to which the text as we wanted it differed in any re- 
spect from the French text in the Report (Document 39) which 


526 THE DRAFTING OF THE COVENANT 


had been handed to me the day before, the words we desired omit- — 


ted are in brackets and the words we desired inserted are in italics. 
The rest of the French text as in Document 39 we thus accepted, 
including those few cases in which it changed in minor matters 
what had been previously printed, as in the Preamble, for in- 
stance. 

So at this stage the differences between the French text of 
the Covenant which the French were printing and the French text 
which I was having printed were in those Articles enumerated 
above and the differences in those Articles are indicated in Docu- 
ment 39. 

Accordingly on the afternoon of the next day, April 24, MM. 
de Sillac and Clauzel came to my office and went over the texts 
with Warrin and myself. Most elaborate notes were made 
at the time with meticulous care. 

The agreement that was reached at this meeting was in detail 
as follows: 

The French accepted our text in Articles 2, 5, 6, 21 and 23, 
that is to say, our text of those Articles as shown in Document 39. 

Article 8 was not completely agreed upon; the first, fifth and 
sixth paragraphs of that Article were the same in both texts so 
that they were not in question. 

While the third paragraph was the same in the two texts, 
it was agreed to change the word “programmes’”’ to “plans” ; and 
the fourth paragraph was accepted as in our text. 

The second paragraph of this Article 8 was radically different 
in the two texts, as I have mentioned above. I proposed a new 
redaction, precisely the language of the Covenant as it now is; 


Le Conseil, tenant compte de la situation géographique et des 
conditions spéciales de chaque Etat, prépare les plans de cette 
réduction, en vue de l’examen et de la décision des divers Gou- 
vernements. 


The question left open between the French and ourselves was 
as to the precise wording of the last phrase of this second para- 
graph of Article 8, “en vue de l’examen et de la décision des 
divers Gouvernements.” 

As to Article 16, the first and fourth paragraphs were the 
same in the two texts and so were not in question. As to the 
second paragraph of this Article, there was and had been a real 
discrepancy throughout. At the meeting I wrote out a new draft 


Se a ee 


ee eT 


ee 


THE FRENCH TEXT 527 


which was accepted and which is almost literally 1 the language 
of the Covenant today: 


En ce cas, le Conseil a le devoir de recommander aux divers 
Gouvernements intéressés les effectifs militaires ou navals par 
lesquels les Membres de la Société contribueront respectivement 
aux forces armées destinées a faire respecter les engagements de 
la Société. 

The third paragraph of this Article was identical in the two 
texts. However, the last words which read “pour imposer le 
respect des obligations de la Société,” were changed so that they 
should read as they do in the Covenant “pour faire respecter les 
engagements de la Société.” 

In Article 17 there was only one very trifling difference be- 
tween the two texts. The French had the expression “de leurs 
différends” ; we had it “de leur différend,” we agreed to make 
it read “du différend,” as it reads now. 

In Article 22 (the Mandates Article) the differences were, 
with the exception of the printer’s omission ? in the text of the 
French in the second paragraph, slight and immaterial. Our 
text of this Article, as it repaired that omission and otherwise, 
was almost literally accepted; in the first paragraph the change 
of a preposition was made* and in the fourth paragraph the 
French rendering of an adverbial expression * was accepted in- 
stead of ours. The language of the Article as we agreed to it is 
the present French text. 

What all this means is that a complete agreement, presum- 
ably final, had been reached with the French regarding a French 
text of the Covenant except as to three matters: (1) part of the 
second paragraph of Article 8 mentioned above; (2) the chapter 
headings of the French which they wanted and we did not; (3) 
the list of invited States in the Annex, a matter which the French 
regarded as being still open. As to this the French were strictly 
correct for undoubtedly the Conference had the power to make 
additions to the list of the thirteen Neutral States if it so decided.® 

There was another question which complicated the matter 
of the French text at this stage and which was as yet unsettled. 
This was as to whether and how far the French would accept 


*Instead of “ou navals” the Covenant now reads “navals ou aériens.” 
* Of the words “et qui consentent a l’accepter.” 

*“Tans le présent Pacte” instead of “au présent Pacte.” 

*“D’abord en considération” instead of “en premiére considération.” 
*See the American Note on this matter quoted at p. 486. 


528 THE DRAFTING OF THE COVENANT 


the changes proposed in the British memorandum substituting 


“Members of the League” for ‘“‘States,” which I have described | 
in detail in the preceding chapter. Finally, as there told,? the | 
French accepted all of these proposed changes except in Article 16 | 


and in the second paragraph of Article 8, as to which the British 
withdrew their proposals. 


Upon the reaching of this agreement on April 27 with the | 
British and the French as to the matter of the use of the words | 
“Members of the League” in the text of the Covenant, there was | 


really a final agreement on the French text, for the French no 
longer questioned my redaction? of the second paragraph of 


Article 8 and abandoned their chapter headings. The French © 


at once reprinted their French text of the Report of the Commis- 
sion on the League of Nations including the French text of the 


Covenant as we had agreed upon it, with changes as to “Membres 4 
de la Société,” etc., to correspond with the English (this Report — 


with the Covenant text is Document 40). Our Printing Office 
also made a print of this French text. The two still differed 
slightly, chiefly because the French in minor matters of printing 
style changed their print from time to time as they thought fit. 
I had to keep track of these changes and in so far as they did not 
matter, agreed to them and had them fixed up in our print by our 
Printing Office, most of the staff of which incidentally knew no 
French at all. 

The discrepancies by this time had gotten down to very small 
matters and on April 28 I wrote this memorandum for Mr. 
Shepardson : 


There are certain differences between the French text as 
printed by the French Foreign Office and the French text as 
printed by us. 

Most of these are of trifling importance. 

I enclose one of our prints of the French text marked “17 
corrections,” which indicate those of the differences between the 
two texts which we should accept. 

I also enclose a list of the changes which should be made in 
the text printed by the French Foreign Office. 

With these two sets of changes I think that the two texts 


*See p. 478 sqq. 

* See p. 487 sq. 

* See p. 526. 4 

‘Instead of these, there were printed in the French Report marginal titles 
of each Article. 


THE FRENCH TEXT 529 


would be literally the same, except for the insertion in the text we 
had printed of the names of the thirteen Neutral States. 


In explanation of this memorandum I may say that I do not 
reprint, because it is unnecessary, what I may call the American 
French text at this time. This is what is called in the above mem- 
orandum for Mr. Shepardson “one of our prints” and the “17 
corrections” mentioned were matters of the most insignificant 
character, such as the placing of commas, etc. In the memoran- 
dum to Shepardson I said that I enclosed a list of the changes 
which were necessary in the text printed by the French Foreign 
Office. This was a rather formidable looking list of 21 items, but 
most of them were really slips in the printing and nothing more; 
and as they were all corrected in accordance with my list before 
the Treaty was printed, I have incorporated the necessary correc- 
tions in Document 40; so the French text in that Document is 
the French text agreed on and may be regarded as the French 
text reported? by the Commission on the League of Nations; 
although the agreement about it, which was rather wearisome in 
being reached and has perhaps been as wearisome in the telling, 
was not reached until long after the final meeting of the Com- 
mission; indeed, not until just before the Plenary Session of the 
Peace Conference on April 28. 

The Secretariat of course made a careful note of the changes 
adopted at that Plenary Session and had printed them thus as an 
addendum to the English text: 


At the Plenary Session of the 28th April, 1919, the following 
additions were made to the text of this Covenant: 

In Article 1v, first paragraph, last line, after the words “repre- 
sentatives of” add, “Belgium, Brazil, Greece and Spain.” ? 

In Article v, first paragraph, at the end of the first line, strike 
out the comma and add: “or by the terms of this Treaty.” ° 

In the Annex, under the caption “First Secretary General of 
the League of Nations,’ add: “The Honorable Sir James Eric 
Drummond, kK. c. M. G., C. Be” 


In the Report in French which as an original record forms part of the 
Protocol of the Plenary Session of the Peace Conference of April 28, 1919, 
(extracts from this Protocol No. 5 are Document 33) some of these cor- 
rections had not been made; I have noted these in Document 40. 

Furthermore, one error in the printed Report which was perhaps not con- 
sidered was “du monde” for “dans le monde” as the final words of Article 
25; but this too was corrected later. 

? The Treaty order is “Spain and Greece.” 

*Later “this Treaty” was written “the present Treaty.” 


530 THE DRAFTING OF THE COVENANT 


The utmost care was taken to see that the general Drafting — 


Committee of the Conference knew the exact status of the text 
of the Covenant, both French and English. On April 29 I met 
Shepardson and an assistant to Dr. Scott, the American mem- 
ber of the general Drafting Committee; I gave to each of them a 
copy of the French Report marked so that it read exactly as I have 
printed it in Document 40; and I wrote a pencil memorandum 


showing that there were five matters in the French Report to be © 


noted, namely: 


(1) The marginal titles were not part of the text of the 
Treaty. 

(2) The list of thirteen neutral States was omitted! from 
the French text (Annex). 

(3) The amendment to Article 5 adopted by the Conference ? 
was not in the French text. 

(4) The names of four States to be on the Council (Article 
4) were not in the French text. 

(5) The name of the first Secretary General was not in the 
French text (Annex). 


I said that I thought the French text was absolutely correct with 
the changes noted thereon in addition to the matters listed in the 
above memorandum; and I mentioned that the style of numerals 
(Roman or Arabic) used in the French and English texts, 
differed both in the body of the text and in the Annex. 

I also gave to Butler, who came in, the same information and 
copies of the corrected French text. Butler said he was going to 
see Hurst at the Drafting Committee. The memorandum which 
I wrote for Shepardson at this time and of which Butler had a 
copy was this: 


Herewith is a copy of the Report which the French printed, 
with the text of the Covenant corrected to show the way it should 
read according to the list of corrections which I sent you yester- 
day. I am sending a copy of this memorandum and of the en- 
closure to Major Butler. 

I hope that we will be able to see that the French text is as 
indicated. 

Also I would suggest that both the British and the American 
representatives on the Drafting Committee receive from the Secre- 
tariat copies of the English and of the French text as we have 
them. 


*Tt appears, however, in the report as printed in Protocol No. 5. 
7In English, “or by the terms of the present Treaty.” 


ee ae ae ee ee ee ee ee ee 


7. 


—eeEeEeEeEeEeEeEeEeEeEeEeEEeEeEeeeeee 


THE FRENCH TEXT 531 


Then no change would be necessary for the purposes of the 
Treaty except the amendment to Article v proposed by President 
Wilson, the writing in of the name of the First Secretary Gen- 
eral, and the insertion of the names of the four States in Ar- 
ticle Iv. 


The French text, with the English, was now before the 
general Drafting Committee. I have already told} the story 
of the episode of May 5 regarding the addition in one of the 
proofs of certain words in Article 22 and the change in the 
Annex of the place of the name of Italy, and how these attempted 
changes were vetoed on the eve of the presentation of the “Con- 
ditions of Peace” to the Germans on May 7. 

There remain to be mentioned certain changes in the French 
text made by the general Drafting Committee. Before coming 
to these, however, I may refer to one change which was attempted 
but finally was not made. When a copy of the “Conditions of 
Peace” presented to the Germans on May 7 came in, I went over 
the text of the Covenant, both French and English, very carefully 
for printer’s errors. 1 found six of these, four in the English 
and two in the French. I sent out a memorandum of these 
through the Secretariat on May 14. On May 20, Mr. Grew, the 
American Secretary General, sent a letter to Shepardson saying 
that all the typographical changes which I had recommended 
had been made except one. That one was in the first paragraph 
of Article 8 which in the French now reads thus: 


Les Membres de la Société reconnaissent que le maintien de 
la paix exige la réduction des armements nationaux au minimum 
compatible avec la sécurité nationale et avec l’exécution des obliga- 
tions internationales imposée par une action commune. 


In the “Conditions of Peace” the word “imposée” was printed 
in the plural ‘“imposées” and I had said in my memorandum of 
printer’s errors that it should be in the singular as the reference 
is to “exécution.””* Mr. Grew’s letter said that the plural had 
been retained because it was thought to be correct. However, 
the singular is used in the final French text of the Treaty. 

One change of a single word made by the general Drafting 

*See p. 501 sqq. 
* The English is “the enforcement by common action of international obli- 
gations” (see Document 3, Article 4, for the origin of these words). The 


expression is not one of complete precision. Furthermore, the French 
“exécution” is not an exact equivalent of the word “enforcement.” 


532 THE DRAFTING OF THE COVENANT 


Committee was in the next to the last paragraph a Article 15. 
The English read thus : 


The Council may in any case under this Article refer the dis- 
pute to the Assembly. The dispute shall be so referred at the re- 
quest of either party to the dispute, provided that such request be 
made within fourteen days after the submission of the dispute to ~ 
the Council. 


The French as Larnaude and I had agreed on it and as it went 
to the general Drafting Committee was as follows: 


Le Conseil peut, dans tous les cas prévus au présent article, 
porter le différend devant l’Assemblée. L’Assemblée pourra de 
méme étre saisie du différend a la requéte de l’une des parties; 
cette requéte devra étre présentée dans les quatorze jours a dater 
du moment ot le différend est porté devant le Conseil. 


Shortly after my meeting with Larnaude on April 18 he wrote 
me regarding this paragraph as follows: 


Présidence du Conseil REPUBLIQUE FRANCAISE 
Comité consultatif juridique Neuilly sur Seine, 
de la Paix 92 Boulevard Maillot 


= 21 avril, 1919. 
47, Rue St. Dominque 


Cher Monsieur 


Je vous serais reconnaissant de soumettre a M. le Président 
Wilson le doute que le texte anglais du Covenant laisse dans mon 
esprit, pour l’avant dernier paragraphe de Varticle 15. 

D’aprés ce paragraphe le Conseil peut toujours renvoyer I’af- 
faire a l’assemblee. 

Mais que signifie la seconde phrase “The dispute shall be so 
referred at the request of either party to the dispute?” 

Cela signifie-t-il que, sur cette requéte, le Conseil est obligé de 
se dessaisir et de soumettre le différend a l’assemblée? 

Ou bien veut-on dire que la partie a le droit de le lui demander, 
mais qu'il reste juge de la décision a prendre sur cette demande, et 
qu'il peut ou non y déférer a son gré? 

Si c’est la premiere interprétation qui doit prévaloir elle me 
semble bouleverser complétement l’économie du Covenant, car le 
Conseil sera toujours dessaisi dans les cas les plus graves, l'article 
15 formant l’article capital du projet. 

Veuillez croire a mes meilleurs sentiments. 

F. LARNAUDE. 


THE FRENCH TEXT 533 


My answer to Larnaude of the next day which President 
Wilson, to whom I transmitted translations of the correspondence, 
later sent word to me was “just right” was this: 


Cher Professeur Larnaude: 


J'ai bien regu votre honorée lettre du 21 courant et je ne man- 
querai pas a porter a la connaissance du Président la question dont 
vous m’écrivez. 

Au cours d’un examen des travaux de la Commission, j’ai 
constaté qu'il se trouvait au troisieme alinéa de l’article 13, comme 
celui-ci a été présenté a la Commission (maintenant devenu I’arti- 
cle 15), ce qui suit: 


“The Executive Council may in any case under this 
Article refer the dispute to the Body of Delegates. The dis- 
pute shall be so referred at the request of either party to the 
dispute.” 


Cette rédaction est bien la méme que celle du présent texte, 
sauf les expressions “Executive Council” et “Body of Delegates” 
qui ont été remplacées par les mots “Council” et “Assembly.” 

En effet, il parait qu’ a la Commission il n’a pas été fait d’ob- 
jection a la rédaction de cet article si ce n’est l’objection de M. 
Venizélos que la requéte de l’une des parties devrait se faire dans 
un certain délai. Or, dans le procés-verbal du 7 Fevrier, M. Veni- 
zélos a bien employé le mot “droit.” 


“Finalement, M. Venizélos fait remarquer qu’un certain 
délai devrait étre fixé en ce qui concerne le droit pour chacune 
des parties a un litige de le renvoyer du Comité a 1’Assembleée 
des Délégués, et ce point est généralement admis par la Com- 
mission.” 


Il est aussi 4 remarquer que l’amendement 4 cet article, alors 
article 13, maintenant l’article 15, dont le Comité de Rédaction a 
fait rapport a la Commission, est concu comme il suit: 

“Le différend sera dans ce cas porté devant elle a la requéte de 
l'une ou l’autre des parties, pourvu que cette requéte intervienne 
dans les quatorze jours de la soumission au Comité.” 

Bien sincérement a vous, 
Davin HunTER MILLER. 


The general Drafting Committee changed the word “pourra,” 
in this paragraph of Article 15, to “devra’” which is more ac- 
curate. It is entirely clear now in either text that the transfer of 
the consideration of a dispute from the Council is a matter of 


534 THE DRAFTING OF THE COVENANT 


right, upon request being made by one of the Parties within 
the period limited. : 

The remaining changes made in the French while the Cove- 
nant was before the general Drafting Committee were of a very 
minor sort. Asa matter of course, following the English,’ in the ~ 
first paragraph of Article 4 the words “Principales Puissances 
alliées et associées” were substituted for the names of the five 
Great Powers; equally of course the results of the Plenary Ses- 
sion of the Peace Conference of April 28 were incorporated in — 
the text by inserting the names of the four Powers on the Council 
in the first paragraph of Article 4, the words “ou des clauses 
du présent Traité’”’ in the first paragraph of Article 5 and the 
name of Sir Eric Drummond in the “Annexe” which was so en- 
titled instead of “Annexe au Pacte.”’ Also, as in the English, — 
where the word “air’”’ had been added to the words “military” and 
“naval,” so in the French the word “‘aériens”’ was added,” the four 
instances being in the second paragraph of Article 1, the last 
paragraph of Article 8, Article 9 and the second paragraph of 
Article 16. 

In Article 9 the verb “est”? became more accurately “sera’’ 
and in the first sentence of Article 16 there was a change of “et” 
fo our: 

In the second sentence of the first paragraph of Article 24 the — 
general Drafting Committee followed the English more closely * 
by striking out the words “Il en sera de méme de” at the beginning 
of the sentence and inserting the words “seront placés sous l’autor- — 
ité de la Société” at the end so that it read: 


Tous autres bureaux internationaux et toutes commissions — 
pour le réglement des affaires d’intérét international qui seront — 
créés ultérieurement seront placés sous l’autorité de la Société. 


Furthermore in the Annex “Serbie” was corrected * to “Etat 
Serbe-Croate-Slovéne,” and the names of the thirteen invited 
States were inserted. While the names of these thirteen States 
appear properly in the French text of the Treaty of Versailles in 
the French alphabetical order, they are arranged in the English 


+See p. 499 sq. 

? This addition was made after the “Conditions of Peace;” see p. 504. 

* Cf. Document 37. The change was made after the “Conditions of Peace.” 
‘This correction was made after the “Conditions of Peace.” 


THE FRENCH TEXT 535 


text in the English alphabetical order which differs, the initial 
letters of Spain and the Netherlands not being the same in the two 
languages. 

With these changes, the French text was the French of the 
Covenant in the Treaty of Versailles which in this collection 
is Document 34. 

The writing of a document in two languages has its disad- 
vantages, regarding which much has been written; but it has its 
advantages too. If one is turning an agreement written in Eng- 
lish into some other language, and one finds a clause which does 
not seem to translate, it is a very good indication that there is 
something wrong with the English. Indeed it is an excellent test 
of the precision of a phrase in English to turn it into some other 
familiar language and see how it looks. 

Perhaps it would be impossible to write an international 
document of the character of the Covenant in any two languages 
without there being at least some arguable differences in meaning 
between the two texts; in respect of the Covenant of course many 
ignorant assertions of non-existent differences have been made; 
but even arguable differences are not always a disadvantage in 
my opinion, for they often tend to throw light on the meaning and 
understanding of the document as a whole. 

The idea of some people that an elaborate statute or charter 
can be so drafted as to have only one conceivable meaning in every 
given place, if written in “plain English” as such people say, is 
a laughable delusion. In this sense there is no such thing as 
“plain English” or “plain” any other language. How in the light 
of our past history any American can talk about “plain English 
which needs no interpretation” passes my comprehension. No 
human being has ever yet been able fully to find out what the 
words “‘direct tax” in our Constitution mean and there could be 
hardly anything simpler than this expression of nine letters, one 
adjective and one noun. As John W. Davis said in a letter which 
I have quoted in another connection: 


. a certain famous charter which has been much praised as 
a model of constitutional style, and which in the Convention passed 
through the Committee of the Whole, the Committee of Revision, 
and the Committee on Style under Gouverneur Morris, has given 
the Courts of the U. S. A. work for one hundred and thirty years 
in an effort to fathom all its meaning—and the job is not finished 
yet. 


536 THE DRAFTING OF THE COVENANT 


It is certainly arguable at least, and I think myself that the 
contention is sound, that there is on the whole less room for de- 
bate as to the meaning of a document carefully written in two 
languages than if written in one. We are apt to think of the few 
points where some ingenious mind may contend that the ex- 
pression of the one text is not absolutely identical with the other. 
We should, however, remember the many places where a possi- 
ble doubt which might be raised by the attribution of a duality 
of meanings to the one text is precluded by the other equivalent. 

The French text of the Covenant is, all in all, an admirable 
counterpart of the English; together the two form a finer World 
Document than either one would separately. | 


CHAPTER XXXVI 
THE GERMAN PROPOSALS 


THE negotiations at Paris between Germany and the Allied 
and Associated Powers after the presentation of the “Conditions 
of Peace’ on May 7 and prior to the signature of the Treaty of 
Versailles on June 28, 1919, were carried on in writing. It 
seems unnecessary to attempt here to extract from that volumin- 
ous correspondence all the incidental and other references to the 
League of Nations, so only the more direct and essential portions 
of the Notes are here quoted. The entire correspondence of the 
period has been published. 

Various Committees to consider the German comments on the 
Treaty were set up pursuant to this communication from the 
General Secretariat of the Conference under date of May to: 


ARTICLE I. In order to deal with questions of detail, re- 
quests for explanations and the like, referred by the German 
Delegates during the 15 days which intervene before they furnish 
their global reply to the Treaty of Peace to be handed to them, 
the Secretary General is empowered to refer to the following 
Committees, each of which will be composed of one representative 
each of the United States of America, the British Empire, France 
and Italy (in the event of the Italian Delegation returning) : 

1. Committee on the League of Nations. 
. Committee on the Geographical Frontiers of Germany. 
Committee on Political Clauses affecting Europe. 
Committee on Political Clauses outside Europe. 
(a) Committee on Military Clauses. 
(b) Committee on Naval Clauses. 
. (c) Committee on Air Clauses. 
. Committee on Prisoners of War and Graves. 


aumg bw Sb 


* See Materialen betreffend die Fricdensverhandlungen, Charlottenburg, 19109. 
A French text is entitled Notes échangées entre le Président de la Conférence 
de la Paix et la Délégation allemande du 9 mai au 28 juin, 1919 and is repro- 
duced in La Paix Des Peuples, vol. vitt of Archives De La Paix, Paris, 1928. 
An English text (incomplete) is in Senate Document 149, 66th Congress, Ist 
Session. The final elaborate statement of the German position as to the Treaty 
of Peace, dated May 29, is also to be found in International Conciliation, 
October, 1919, No. 143, and in the same series for November, 1919, No. 144, 
is contained the global Reply of the Allied and Associated Powers with the 
covering Note of M. Clemenceau as President of the Peace Conference under 
date of June 16, 1919. 


537 


538 THE DRAFTING OF THE COVENANT 


7. Committee on Responsibilities and Punishment. 
8. Committee on Reparation and Restitution. 

g. Committee on Financial Clauses. 

10. Committee on Economic Clauses. 

11. Committee on Ports, Waterways and Railways. 
12. Committee on Labor. 

13. Drafting Committee for the Final Clauses. 


ARTICLE 11. The Secretary General will refer all questions 
of policy to the Supreme Council but will use his discretion to 
refer all questions of detail to the above committees, who should 
themselves in addition exercise their judgment if they consider 
questions of policy are involved to refer the questions to the Su- 
preme Council. 


In lieu of any comments on the Covenant, the German Dele- 
gation, by Note of May 9, submitted an elaborate Draft of their 
own, including as an Appendix, an “International Workers’ 
Charter.” ; 

The German Draft (omitting the Appendix), with the Eng- 
lish version transmitted by the German Delegation, is Document 
35. The German Note of transmittal (official translation) was 
as follows: 


Versailles, le 9 mai 1919. 
Monsieur le Président, 


La Délégation allemande de la Paix a l’honneur, en remet- — 
tant ci-joint un projet allemand, de prendre position en ce qui 
concerne la Ligue des Nations. Ce projet présente, a ses yeux, 
des suggestions d’ordre essentiel au probleme de la Ligue des Na- 
tions. La Délégation allemande de la Paix se réserve de s’exprimer 
d’une facon encore plus détaillée au sujet du projet des Gouverne- — 
ments alliés et associés. Dés a présent elle appelle toutefois l’at- 
tention sur la contradiction résultant de ce que l’Allemagne doit 
signer le statut de la Ligue des Nations en tant que partie intégrante 
du projet du traité qui nous a été remis, alors qu'elle ne se trouve © 
pas parmi les Etats invités a entrer dans la Ligue des Nations. 
La Délégation allemande demande si et, le cas échéant, dans 
quelles circonstances, pareille invitation est envisagée. 

Agréez, Monsieur le Président, l’expression de mon respect — 
le plus distingué. ‘ 

BROCKDORFF-RANTZAU. 


A Son Excellence le Président 
de la Conférence de la Paix, etc. 
Monsieur Clemenceau. 


THE GERMAN PROPOSALS 539 


Doubtless the Germans at this date were too concerned with 
other questions of the Treaty of Peace to do more than thus 
place their views on record, with an inquiry as to the admission of 
Germany to the League; and there was perhaps no expectation 
as there was certainly no possibility, that the German Draft would 
bring about any change in the Covenant as written. 

The acknowledgment of the German Note of transmittal was 
in the following terms: 


Paris, le 10 mai, 1919. 
Monsieur le Président: 


J’ai Vhonneur de vous accuser réception du projet allemand 
de Société des Nations. 

Ce projet sera renvoyé a la Commission compétente formée 
par les Puissances alliées et associées. 

Les délégués allemands pourront constater par un nouvel ex- 
amen du Pacte de la Société des Nations que la question d’admis- 
sion de nouveaux membres dans cette Société n’a pas été omise, 
mais est prévue explicitement dans le deuxiéme paragraphe de 
Varticle premier. 

Veuillez agréer, Monsieur le Président, l’assurance de ma haute 
considération. 

CLEMENCEAU. 


A Son Excellence 
M. le Comte Brockdorff-Rantzau, 
Président de la Délégation allemande, 
Versailles. 


The reply sent to the German proposals ' was in substance the 
work of Cecil. The draft which he prepared was the basis of 
discussion at a meeting of the above mentioned Committee on the 
League of Nations on May 16 attended by Bourgeois and Baron 
Makino as well as by Cecil and myself; and the slightly modified 
draft of the Committee was almost literally the answer sent under 
date of May 22, which follows :? 


The Committee of the Allied and Associated Powers appointed 
to consider the proposals of the German Government on the sub- 
ject of the League of Nations have examined these proposals with 
care. They note with interest the stipulations contained in the 
project of the German Government, and have considered that a 


*See Document 35. : 
? The English text circulated by the Secretariat. 


540 THE DRAFTING OF THE COVENANT 


suitable opportunity for the general discussion of these stipula- 
tions will arise when the League has been definitely constituted. 
For the moment, they limit themselves to drawing attention to a 
certain number of the specific points raised. 

They beg to point out that the proposals of the German Govern- 
ment deal with matters which have been discussed at length 
by the Commission of the League of Nations. But they consider 
in general that the proposals of the Covenant are much more prac- 
tical than those of the German Government, and better calculated 
to secure the objects of the League. 

They are glad to note that the German Government is in favor 
of a League for the maintenance of peace which shall be based on, 
and which shall give effect to, the general principles of demo- 
cratic government. With that point of view they are in hearty 
agreement. But they do not consider that all the specific pro- 
posals of the German scheme would, in practice, be an advantage 
for the purpose. 

They submit the following observations on certain of the sug- 
gestions put forward by the German Government : 

1. With regard to the establishment of a separate International 
Mediation Office (paragraph 16-18, and 62 of the German proj- 
ect), they do not consider that any body of mediators chosen 
in accordance with the German plan would in fact have the neces- 
sary authority to settle international disputes or to maintain the 
peace of the world. That will be the function of the Council as 
constituted by the Covenant. 

At the same time they are in sympathy with the view that some 
system of impartial Commissions for conciliation may in many 
cases be the most suitable and the most effective means for the 
preliminary investigation, and where possible, for the settlement 
of disputes not taken to arbitration; and they beg to point out that 
there is nothing in the Covenant to prevent the use of such Com- 
missions. They anticipate that in practice such Commissions will 
be set up whenever they would serve a useful purpose. 

2. The proposals of the German Government for the composi- 
tion, jurisdiction and procedure of a Permanent Court of Inter- 
national Justice (paragraphs 14-15, 29-36) have been carefully 
reviewed, and will be submitted for detailed consideration to the 
Council of the League of Nations, when it prepares a plan for 
the establishment of a Permanent Court in accordance with Ar- 
ticle 14 of the Covenant. 

3. The League of Nations Commission of the Conference at 
an earlier stage considered the principle of obligatory arbitration 
(paragraphs 30-33), and decided that its universal application in 
the form proposed is not practicable at the present time. The 
Committee point out, however, that they have provided for an obli- 


i —————EEaeEE———EE—eeeEeEeEeEeEeEeEeEeEeEeEEeeEeEEEeEeEeEeEeEeEeEeEeEeEee—errrereerereeererere 


THE GERMAN PROPOSALS 541 


gatory recourse to pacific means for the settlement of all disputes 
and they believe that the establishment of a Permanent Court will 
do much to encourage the extension of the principle of arbitration. 

4. They are in sympathy with many of the proposals made in 
paragraphs 44-53 of the German Government’s project with refer- 
ence to Freedom of Transit and Communications and the economic 
and commercial relations between different peoples. They beg to 
point out that general agreements on these matters, of the sort sug- 
gested by the German Government, are already under consideration 
by the Allied and Associated Powers, and that they will be sub- 
mitted in due course to the League of Nations. 

5. With regard to the proposal that all costs and damages re- 
sulting to Members of the League from a breach of the Covenant 
should be paid by the Covenant-breaking State (paragraph 65), 
the Allied and Associated Powers recognize generally the justice 
of the principle laid down by the German Government, which is 
indeed of general application. They are, however, so confident 
that this measure would in fact be adopted by the League in the 
unfortunate event of a breach of the Covenant that they do not 
consider any modification of the provisions of the Covenant to be 
required. 

6. They are glad to note that the German Government is in 
favor of disarmament (paragraphs 40-42). They beg to point out 
that the Covenant provides for the preparation and submission to 
the Members of the League of proposals for international dis- 
armament. 

7. They note the proposals of the German Government (para- 
graphs 62-64) as to sanctions for breach of obligations of the 
Members of the League. They are, however, of opinion that the 
automatic economic pressure on Covenant-breaking States pro- 
vided by Article xvi of the Covenant, to be followed by such 
international military or naval action as may be necessary is likely 
to be speedier and more effective than the German suggestions. 


In their final Observations of May 29, 1919, the German Dele- 
gation vigorously protested against the non-admission of Ger- 
many to the League. After quoting at some length from the 
utterances of President Wilson and various Allied statesmen the 
German Observations + went on to say: 


These manifestations made it appear as a matter of course to 
the German people that it would, from the beginning, participate 
in the establishing of the League of Nations. But in contradic- 
1For this and following extracts from the German Observations there are 


various translations available; I have used the one which was made under 
oMicial German direction. 


542 THE DRAFTING OF THE COVENANT 


tion to them, the statute of the League of Nations has been 
framed without the cooperation of Germany. Nay, still more: 
Germany does not even stand on the list of those States that have 
been invited to join the League of Nations. To be sure, Germany 
may apply for admission which, however, is made dependent on 
“effective guarantees,” the extent and tenor of which she does not 
even know. 

The importance of Germany is independent from her tempo- 
rary military or political power; therefore, without her being ad- 
mitted, a true “League of Nations” cannot be spoken of. What 
the treaty of peace proposes to establish, is rather a continuance 
of the inimical coalition not deserving the name of “League of 
Nations.” The inner structure, too, does not realise the true 
League of Nations. Instead of the dreamt of holy alliance of 
the nations, there reappears in it the fatal idea of the holy alliance 
of 1815, the belief as though it were possible to secure to the 
world a peace from above by way of diplomatic conferences with 
diplomatic organs. We miss technical proper authorities with im- 
partial tribunals beside the select committee controlled by the 
Great Powers which may submit the whole civilised world to its 
control at the expense of the independence and equality of rights 
of the smaller States. The maintenance of the old political system 
with its tricks and rivalries based on force is thus not rendered 
impossible! 


To this protest the covering Note of Clemenceau of June 16, 
made this answer: 


Les Puissances alliées et associées ont examiné avec soin la de- 
mande présentée par la Délégation allemande et tendant a faire 
admettre immédiatement |’Allemagne dans la Société des Nations, 
Elles ne peuvent accéder a cette demande. 

La Révolution allemande a été retardée jusqu’aux derniers mo- 
ments de la guerre, et jusqui’ici les Puissances alliées et associées 
n’ont aucune garantie que cette Révolution représente un chan- 
gement durable. 

Dans |’état actuel du sentiment public international, il est im- 
possible d’attendre des nations libres du monde qu’elles s’associent 
immédiatement et sur un pied d’égalité avec ceux qui leur ont causé 
des torts si graves. Tout essai pour obtenir ce résultat d’une ma- 
niére prématurée retarderait, au lieu de la hater, la venue d’un 
apaisement désiré par tous. 

Mais les Puissances alliées et associées croient que si le peuple 
allemand démontre par des actes son intention de satisfaire aux 
conditions de la paix, son renoncement pour toujours a la poli- 
tique agressive qui lui a aliéné le reste du monde et qui a été la 


: 
| 
| 
: 


THE GERMAN PROPOSALS 543 


cause de la guerre, et sa transformation en un peuple avec qui I’on 
peut vivre en bon voisinage et sur un pied de bonne entente, alors 
le souvenir des derniéres années s’effacera rapidement, et il sera 
possible de compléter dans un avenir non éloigné la Société des 
Nations en y admettant l’Allemagne. Les Puissances alliées et 
associées désirent sincérement qu’il puisse en étre ainsi. Elles 
croient que l’avenir du monde dépend de la coopération étroite 
et amicale de toutes les nations en vue de régler les questions inter- 
nationales et de favoriser tout ce qui touche au bien et au profit de 
Vhumanité. Mais c’est surtout de l’action du peuple allemand lui- 
méme qu’il dépendra de rapprocher la date de son entrée dans la 
Société des Nations. 


In addition to the foregoing expression in the Note, the cov- 
ered Reply of the Allied and Associated Powers adverted to the 
subject of Germany’s admission to the League in the following 
language: 


Enfin, la Délégation allemande proteste contre le fait que !’Alle- 
magne n’a pas été invitée a contribuer a la formation de la Société 
des Nations a titre de membre fondateur. Toutefois, le Président 
Wilson n’a pas prévu de Société des Nations qui comprendrait a ses 
débuts l’Allemagne et l’on ne peut citer de lui aucune déclaration 
a l’appui de cette prétention. En fait, dans son discours du 27 sep- 
tembre 1918, les conditions qui doivent présider a l’admission de 
lAllemagne ont été établies avec la plus grande précision. 

“Tl est nécessaire de garantir la paix et cette garantie de la paix 
ne peut étre l’objet d’une réflexion faite aprés coup. La raison—a 
parler une fois encore franchement—pour laquelle il faut que la 
paix soit garantie, c’est qu’il y aura des parties contractantes dont 
les promesses, on l’a vu, ne sont pas dignes de foi, et il faut trouver 
le moyen, dans le réglement méme des conditions de paix, de sup- 
primer cette source d’insécurité.” 

Et plus loin: 

“T,’Allemagne aura a se refaire une réputation, non par ce qui 
arrivera a la table de la paix, mais par ce qui suivra.” 

Les Puissances Alliées et Associées escomptent l’époque ot la 
Société des Nations établie par ce traité ouvrira son sein a tous 
les peuples; mais elles ne peuvent faire abandon d’aucune des con- 
ditions essentielles 4 une société durable. 


There was further reference to the question of Germany’s 
membership in the League in other remarks regarding the League 
of Nations in the correspondence of the Parties from which 
I have quoted. Of more present interest, perhaps, is the 


544 THE DRAFTING OF THE COVENANT 


fact that the Germans proposed to add to the Covenant a supple- 
ment regarding economic relations, which the Allied and Associ- 
ated Powers rejected as unnecessary; and it is quite significant 
that the Germans elaborately treated the question of disarmament 
and of the military, naval and air clauses of the Treaty of Ver- 
sailles under the heading of The League of Nations, as to which 
their proposals were as follows: 


A lasting peace of the world can only be reached by means of 
a League of Nations, which guarantees equal rights to the great 
as well as the lesser powers. In the introductory remarks it has 
already been shown that this view of the character and object of 
the League of Nations has also been manifested in momentous 
expressions of opinion of leading statesmen of the Allied and 
Associated Powers. At the same time it was necessary to show 
how far the statutes for a League of Nations as contained in the 
draft for a treaty of our opponents differ from these views. Ger- 
many, for her own part has elaborated a draft for a League of 
Nations and presented it to the Allied and Associated Govern- 
ments regarding which the latter expressed their position in a 
Note of May 22nd, 1919. : 

Without the intention at this time of dwelling upon the views — 
expressed in the Note, the German Delegation is prepared to ne- 
gotiate upon the basis of the draft for a League of Nations con- 
tained in the draft for peace under the condition that Germany 
enters the League of Nations as a power with equal privileges as 
soon as the agreed upon peace document has been signed. 

At the same time Germany demands further under mainten- 
ance of the fundamental ideas of its own draft for a League of 
Nations and in expectation that these fundamental ideas will be- 
come current in the course of time, that regulations regarding 
economic relations be introduced in the draft for the League of 
Nations guaranteeing completely equal and mutual rights for all 
nations. In agreement with President Wilson’s words in point 3 
of his speech before Congress of the 8th January 1918 mentioned 
above, the following supplement to the Convention of a League 
of Nations is proposed: 

“In carrying on trade, industry and agriculture the citizens of 
any one state of the League are to have equal rights with the 
citizens of the other when doing business there, particularly re- 
garding payment of dues and impositions. 

The states of the League of Nations will not participate directly 
or indirectly in measures designed to continue or to resume an 
economic war. The League of Nations reserves measures of 
constraint. 


THE GERMAN PROPOSALS 545 


Goods of all kinds which may come from the territory of one 
state of the League of Nations or which are being sent to that 
of another shall be free from all transit dues in the territory of 
the States of the League. 

Mutual intercourse within the League of Nations is not to be 
interfered with by prohibitions of imports, exports or transit 
unless these measures are required to maintain public safety, 
health or as measures against contagions, diseases or for the pur- 
pose of carrying out internal economic legislation. 

Individual members of the League may at option regulate their 
economic regulations to one another within the compass of the 
League with due regard for their special needs by means of sup- 
plementary agreements in other cases than those mentioned above. 

They acknowledge the creation of a commercial treaty com- 
prising the whole world to be the aim of their endeavours. 

At the same time care must be taken that no State of the 
League, nor a majority of such may have the right to interfere 
with the internal economic or traffic relations of another State of 
the League.” 

Furthermore Germany must demand in agreement with Presi- 
dent Wilson’s declaration of September 27th, 1918: 

“That within the League of Nations there may be no special 
selfish economic combinations; that no application of any kind 
of economic boycott or exclusion may be permissible.” The Ger- 
man Delegation notices with satisfaction that their opponents’ 
draft for a League of Nations contains a regulation which pro- 
vides for a fair and humanitarian determination of the conditions 
of labor and expresses the hope, that the application of this regula- 
tion will realize the ideas forming the fundamental basis of the 
German counter-proposition for a League of Nations. 

Borne by the thought that the League of Nations proposes 
to carry out the ideas of justice and under the expectation that 
Germany enter the League with equal privileges immediately upon 
conclusion of peace, the Government of the German Republic 
is prepared to agree to the fundamental ideas of regulations con- 
cerning army, navy and air forces as proposed in Part v. It is 
especially ready to agree to the abolition of compulsory military 
service under the condition that this measure be the beginning 
of a general reduction of armaments and abolish compulsory 
service, according to article vi11 of our opponents’ draft for a 
League of Nations. 

The readiness of the Government of the German Republic 
to agree to reduce its armaments before the other powers do so 
is the best proof that it has abandoned all militaristic and im- 
perialistic tendencies for ever. 

The German Government must, however, demand a period 


546 THE DRAFTING OF THE COVENANT 


of transition also. The following regulations are accordingly 
proposed for Germany : 

“The German land forces are not to exceed a total of 100,000 
men, including officers and depots. This army is intended to 
preserve order within the confines of the country, to protect its 
frontiers and to provide for the obligations arising for Germany 
upon its admittance to the League of Nations. 

During the period of transition Germany retains the right 
to maintain such forces as are required to preserve internal order, 
which is so much shaken at the present time. The duration of 
the period of transition and the strength of the army are to be — 
especially agreed upon and in case of necessity determined by the — 
League of Nations. 

The organization of the army and its armament are to be 
left to Germany, as indeed to each member of the League. 

Under the presumption that Germany enter the League of 
Nations upon the conclusion of peace and in expectation of further 
mutual action she is prepared in agreement with the draft for 
peace to dismantle the fortresses in the West and to establish a 
neutral zone. 

A special agreement must first be made concerning the manner 
of preserving internal order and safety in this zone. 

Under the condition of a financial regulation Germany is pre- 
pared to surrender not only surface warships demanded in article 
185, but all ships of the line. 

For Germany the principle also holds good that no state shall 
be subjected to any special supervision of the process of its dis- 
armament except that of the League.” 

The German Government is prepared to enter into negotia- 
tions regarding all further matters of detail upon a basis of equal- 
ity. An extension of the spaces of time allowed in section v 
which are technically impossible to fulfill and the manner of utiliz- 
ing superfluous war-material of the Army and Navy for peace- 
ful and in particular economic objects must be given due 
consideration. In the field of aeronautics Germany is ready to 
submit to every regulation to which all members of the League 
of Nations are subjected and also to allow to every member of 
the League those rights as to transit of and landing in her terri- 
tory which are allowed to Germany by all other powers. 

To bring about a speedy conclusion of all details the German 
Government proposes immediate oral negotiations. She reserves 
the right to discuss the preparation of the details of the military 
and naval conditions of the draft in a special note. 

It is the principal and most valuable aim of peace to provide 
security that this war shall have been the last and that humanity 
be preserved from the return of such terrible catastrophes. Ger- 


oz 


THE GERMAN PROPOSALS 547 


many is prepared to do everything within her power to gain this 
end. According to the above propositions it would not be her 
fault, if the nations of the world were disappointed in this ex- 


pectation and if conditions were created which would of necessity 
lead to renewed war. 


The German Observations did result in certain changes in the 
Military, Naval and Air Clauses of the Treaty, which I need not 
here enumerate; but no alteration was admitted in the text of 
the Covenant ; the relevant portion of the Reply of the Allied and 
Associated Powers which is now quoted, was part of “leur dernier 


see! 


mot : 


i- 


I —$_———_— 


Le Pacte de la Société des Nations constitue pour les Puis- 
sances alliées et associées la base du Traité.de Paix. Elles en ont 
avec soin pesé tous les termes. Elles ont la conviction qu’il ap- 
porte, dans les relations des peuples, au service de la justice et de 
la paix, un élément de progrés, que l’avenir confirmera et 
développera. 

Jamais les Puissances alliées et associées,—le texte méme du 
Traité le prouve—n’ont eu l’intention d’exclure indéfiniment de 
la Société ni l’Allemagne ni quelque puissance que ce soit. Elles 
ont pris, a cet effet, des dispositions qui s’appliquent a I’ensemble 
des Etats non membres et qui fixent les conditions de leur admis- 
sion ultérieure. 

Tout pays dont le Gouvernement aura clairement prouvé sa 
stabilité en méme temps que sa volonté d’observer ses obligations 
internationales——celles notamment qui résultent du Traité de 
Paix—trouvera les principales Puissances alliées et associées dis- 
posées a appuyer sa demande d’admission dans la Société. 

_ En ce qui concerne spécialement |’Allemagne, il va de soi que 
les événements des cing derniéres années ne sont pas de nature a 
justifier présentement une exception a la régle générale qui vient 
d’étre rappelée. Dans son cas particulier, une mise a l’€preuve est 
nécessaire. La durée de cette épreuve dépendra, pour une large 
part, des actes du Gouvernement allemand et c’est a lui qu’il appar- 
tient, par son attitude a l’égard du Traité de Paix, d’abréger la 
période d’attente, que la Société des Nations jugera nécessaire 
d’établir, sans avoir jamais songé a la prolonger abusivement. 

Aprés que ces conditions indispensables auront été remplies, les 
Gouvernements alliés et associés ne voient pas de raison qui puisse 
empécher l’Allemagne de devenir, dans un avenir non éloigné, 
membre de la Société. 


548 THE DRAFTING OF THE COVENANT 


II 


Les Puissances alliées et associées estiment que, contrairement 
a la proposition allemande, une addition au Pacte n’est pas néces- 
saire en ce qui concerne les questions économiques. Elles font 
remarquer que le Pacte prévoit! que, “conformément aux prévi- 
sions des Conventions internationales présentes ou a venir, les 
Membres de la Société... prendront des dispositions pour assurer 
et maintenir la liberté des communications et du transit, et aussi 
un traitement équitable pour le commerce de tous les membres de 
la Société.” Dés que l’Allemagne sera admise dans la Société, elle 
bénéficiera de ces dispositions. L’établissement de conventions 
générales concernant les questions de transit est en ce moment 
envisage. 


III 


Les Puissances alliées et associées sont prétes a accorder des 
garanties aux droits des minorités allemandes en matiére d’éduca- 
tion, de religion et de culture dans les territoires transférés de 
lEmpire allemand 2ux nouveaux Etats créés par le Traité. Ces 
garanties seront placées sous la protection de la Société des Na- 
tions. Les Puissances alliées et associées prennent acte de la dé- 
claration des Délégués allemands que l’Allemagne est décidée a 
traiter sur son territoire les minorités étrangéres conformément 
aux mémes principes. 


IV 


Les Puissances alliées et associées ont déja indiqué aux délégués 
allemands que le Pacte de la Société des Nations contient des dis- 
positions! relatives a “la réduction des armements nationaux jus- 
qu’au point minimum ot elle sera compatible avec la sécurité de 
chaque Nation et le pouvoir de faire respecter grace a une action 
commune les obligations internationales.” Elles reconnaissent que 
l’acceptation par l’Allemagne des termes fixés pour son désarme- 
ment facilitera et hatera la réalisation d’une réduction générale 
des armements, et elles ont |’intention d’ouvrir immédiatement des 
négociations en vue de l’adoption éventuelle d’un projet de réduc- 
tion générale. Il va sans dire que la réalisation d’un tel programme 
dépendra pour une large part de l’exécution satisfaisante par |’Al- 
lemagne de ses propres engagements. 


*Note that the quotation from the Covenant is not from the French 
text. 


CHAPTER XXXVII 
LOOKING BACKWARD 


ErGut years have passed since the Covenant of the League 
of Nations was written. What is to be said of the document 
in the light of that period? 

Most striking and to my mind equally obvious is the fact that 
if not written in 1919 as a part of the Treaty of Versailles, no 
‘Covenant would have been written at all, no League of Nations 
would have existed. Perhaps in some other generation some 
union of civilization would have come about, for that is the trend 
of history; but not now, not in our time. 

Of all the silly comments about the Conference of Paris 
and its times, the most inane is that it would have been better 
to write the agreement about a League later, when there would 
have been more time for calm reflection and when the war feelings 
had passed and so on; all of which is the quintessence of stupidity, 
for there has been no moment since 1919 when either that agree- 
ment or any other agreement whatever could have been reached. 
Of course it would have been possible during these years to have 
discussed and written and argued and talked about a League or 
an Association or some other desideratum; but all the talk and 
all the writing would have signified nothing except to the talkers 
and the writers. The experiment had to be started when there was 
a chance to try it out or else remain as a lost thought in a wild- 
erness of words. 

The wisest of Wilson’s many wise decisions was to put and ~ 
keep the League in the Treaty of Peace. 

These eight years have given the League a chance to prove to 
the world the necessity of the idea; the recurrent international 
conference, which was finally the brilliant success of Lord Grey’s 
tragic failure of 1914, has come to stay; the world could now no 
more do without it than without the wireless; and that recurrent 
conference is the fundamental fabric of the League. 

Another outstanding circumstance is that the Covenant re- 
mains about as written. The few textual changes made and even 


549 


550 THE DRAFTING OF THE COVENANT 


those thus far seriously proposed are of a quite minor character, 
relating to no basic principle but rather to internal administration 
or matters of detail or procedure. The Covenant has worked 
and on the whole it has worked very well, and better as time 
goes on; the adaptability of a document to the realities of human 
affairs and its functioning under unforeseen and changing con- 
ditions are its real tests; and these the Covenant has met. 

That this is true despite the absence of the United States is 
explicable only because it has happened. No one in 1919 would 
have believed possible such an outcome. Indeed, the volunteer 
grave-diggers here in the United States who so cheerfully came 
constantly to bury the League and never to praise it have had once 
and again in astonishment to lay aside their shovels. The en- 
trance of Germany as opposed to her original hostility and the 
French devotion of 1927 to the League as an institution of peace 
as contrasted with the cynical or indifferent scepticism of 1919 
are equivalent marvels. More overwhelming proof of the 
necessity and value of the League idea it would be impossible to 
imagine. And the depth of European sentiment in this regard, 
notably among the small and militarily unimportant Powers, 
was seen when the World Court reservations of the United States 
Senate were deemed unacceptable; they were not accepted be- 
cause they held the possibility at least of weakening the existing 
institution; and this danger weighed more heavily on the one 
side of the balance that did the admittedly weighty sentimental 
advantage of American cooperation on the other. 

Of course it is a fact, which I would not only admit but assert, 
that the League, without the United States as a Member, has not 
been either in esse or in posse the League that was looked forward 
to in 1919. Nothing could be more easily shown, if one reviewed 
the years since the Peace Conference. Stumbling action and con- 
fused hesitation have often marked the path, when Geneva per- 
force thought of the political isolation of the Great Republic. 

But it is sometimes said, and sometimes thought, that the 
Covenant is not the charter proposed in 1919, that the Covenant 
in operation is, despite the minor character thus far of textual 
changes, not at all the written Covenant, even aside from and be- 
yond the factual results of the incompleteness of the League. 

This might be conceded if by the Covenant and the League 
were meant the campaign picture drawn here in 1920, a picture 
which was of enormous effect as propaganda; though in truth the 
falsehoods told about the ‘‘six votes,’”’ the infamous statements of 


| 


LOOKING BACKWARD 551 


certain women about the white slave traffic, the nightmare of “our 
boys” dying in the Balkans under Article X, the nonsense about 
the Monroe Doctrine and the moonshine about immigration made 
up an incredible farrago of balderdash; and very naturally some 
of those who remember their own wild language would like to 
have it thought now that they were talking of something else. 

The truth is that the Covenant, as a political document, has 
worked about as it was written, subject as any such Treaty, 
of necessity, must be, to the shifting political actualities of the 
times. Nothing would be easier than to put one’s finger on this 
or that episode and point out that the language of Article so-and- 
so has on such-and-such an occasion not been literally carried out 
by the League or has been tacitly disregarded or conveniently 
overlooked. It could not be otherwise in an imperfect world, 
and even in a better world hardly otherwise during the opening 
phases of a new and momentous experiment. The correspond- 
ence of the important figures in our own politics under George 
Washington as President discloses many similar doubts and hesi- 
tations in early American history. 

Doubtless the humanitarian and cooperative activities of the 
League have gone beyond the imagination of all but a few of 
those who considered the language of the Covenant in 1919; the 
same thing is true of the work of the Secretariat which has stead- 
ily achieved appealing and noteworthily increasing success; and 
almost nobody dreamed how busy the League would have to be. 
The Assembly is to meet “at stated intervals,” says the Covenant, 
thinking of infrequent regularity; it is the Council which must 
meet “once a year” by the text; but the yearly session of the 
Assembly is now a fixture; and the Council has met nearly fifty 
times, with quarterly meetings the rule. The numbers of other 
conferences under the League have made it indeed the “almost 
continuous session” of Colonel House’s letter of July 16, 1918. 

Despite the debates and the resolutions of the various Assem- 
blies, the political change that has arrived is not in the Cove- 
nant, but rather in the governmental, official and public atti- 
tudes regarding the objectives of the Covenant. It is coming and 
has partly come to be seen that peace means a situation in which 
neither the guarantees of Article ro nor the sanctions of Article 
16 are called into execution; and so means a situation which 
depends on the conference table agreements of Articles 11 and 19, 
with those other Articles in the background. They are there 


552 THE DRAFTING OF THE COVENANT 


and are of value; certainly the fact of Article 16 has more than 
once been of importance as a warning; but neither its sanctions 
nor the words of Article 10 are the first in action, as they were 
vin debate; for the security of Articles 11 and 19 is the security 
of arbitration and of freedom from attack, while the security of 
Articles 10 and 16 is the security of compulsion and of repara- 
tion. 

Thus even the Assembly debates and resolutions about the 
guarantees of Article 10 and the sanctions of Article 16 have 
meant in part a clearer view of their legal effect, but more broadly 
have been a recognition of the Covenant as a whole, a compre- 
hension of its totality as distinguished from one part of its 
system. 

I do not mean to intimate that either in this regard or in 
others the authors of the Covenant in 1919 fully realized how the 
League would operate. For various reasons, it is often impossible 
for the framers or the students of any political paper of im- 
portance to tell from its language just how it is going to 
work. Instances in English and American history are so num- 
erous that they could be taken almost at random. The Statute of 
Frauds, the Statute of Uses, our own Constitution and the 
Anti-Trust Act are well known examples, and in the history 
of other countries there are others, almost equally familiar. 
Now, partly this is due to matters of language and subsequent 
interpretation but chiefly it is due to the impossibility of fore- 
casting the course of human action; but in general the Covenant 


... has worked according to what its authors thought it meant and 


as they hoped; there have been few surprises. 

Doubtless one of the very greatest achievements of the Cove- 
nant was the change that it made in the usual methods of the con- 
duct of diplomacy. The substitution of personal intercourse for 
communicated correspondence seems a very simple thing; but its 
implications are very far-reaching. It is a commonplace to say 
that a meeting of interested individuals of any group at all brings 
out their different points of view, their divergence and their con- 
currence as well as the possibilities of compromise, much better 
and much more quickly than any other method of interchange of 
human thought. But there is something more to it than this; no 
individual can say to another just what he would write to him; 
you may read a prepared statement at a meeting; but I defy 
any one to talk a prepared statement. A conversation car- 
ried on in the form of diplomatic correspondence is as com- 


LOOKING BACKWARD 553 


pletely impossible as would be a debate carried on in the form of 
Equity pleadings. It is possible to write dialogue; but not even 
government officials could dialogue diplomatic notes. 

The trend toward publicity in international relations has a 
relevance here. To keep correspondence secret is very easy; to 
keep the result or even the details of a meeting secret, when the 
fact of the meeting is known, is no longer to be done; the Fourth 
Estate can here be trusted to find out and to tell. Discussion 
with the door shut has the advantage of simplicity and infor- 
mality; but nowadays the world has its own dictagraph in the 
room. 

Stress is to be laid upon such changes as these because they 
are simple commonsense; stupidity and the repetition of mean- 
ingless and outworn formulas have played a much greater part in 
the history of international affairs than one likes to remember. 
There is an infinite deal of solemn nonsense in intergovernmental 
communications of the past (and in some of the present) which 
no diplomat at a conference table nowadays could say with a 
straight face, particularly when he realized that the newspapers 
would print it the next morning. The Covenant has set up the 
machinery of the newer method. 

It is here too that events have answered some honest doubts. 
It was suggested as obvious and beyond dispute that machinery 
could not change human nature and much less could change gov- 
ernments, composed of personages of special and restricted groups, 
reflecting very often only narrow and local thinking. This view 
has proved to be both superficial and erroneous. Some one said 
once that governments would not be perfect until their citizens 
were perfect and needed no governments; no doubt it is equally 
true that with perfect governments there would be no need of a 
League; while waiting for that millennial era, we have learned that 
it is a nearly universal trait of mankind to use a system when 
it is available and to accept a more settled and smoothly working 
order with the system than without. This is just as true in the 
science of government as in any other phase of civilization. 
Some kind of organization with some sort of procedure is the 
indispensable prerequisite of any group decision or action or even 
deliberation. The machinery of the League is not, as some 
thought, an end in itself; but it is now an indispensable means to 
any end,.qnd the world is using it. 

Even the United States is using it. The episode of Newberry, 
the illness of Wilson and the tergiversation of Lodge, with the 


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554 THE DRAFTING OF THE COVENANT 


following political impasse, kept our country from member- 
ship in the League, which in a very real sense was a creation 
of American public sentiment; for our thought of a League did 
not originate with Wilson at all; he took it over from those leaders 
here who had earlier advocated the idea and who were mostly 
not of his party. Indeed, it is generally forgotten that while 
the Senate was Republican in 1919, some eighty Senators (out 
of ninety-six) voted for the Treaty of Versailles, which failed 
only because of varying forms of certain reservations. 

However, the supposed necessity of winning the Presidential 
election of 1920 (which was won anyway) led to the conflicting 
and ambiguous campaign declarations which successfully brought 
those of every and any possible view into the Republican majority, 
thus swelled to an enormous figure. 

The early and quite mistaken interpretation of the returns as a 
vote on the League, pro and con, and the meaningless trial 
balloons for an “association” of Nations, were perhaps responsible 
for the ensuing silly season during the early days of the Harding 
régime when letters from the League of Nations were unacknow- 
ledged and when the League documents desired for the use of our 
Government were paid for by personal checks, so as to conceal or 
obscure the actual Treasury disbursement. 

This of course was too absurd to last. Our contacts with the 
League are now close. We participate in many ways in its activi- 
ties and we discuss disarmament at Geneva under Article 8 of the 
Covenant. Officially we have every sympathy with the League; 
we were even willing to sit with the Council and the Assembly to 
choose Judges of the Permanent Court. The possibility of still 
closer participation remains open. CP ao eee 

Prophecy is no part of my task; but one prediction is safe. 
American membership in the League is merely a question of the 
existence of the League; the one involves the other. If the League 
goes on, we join. The time is uncertain, but with no less certainty 
of the fact; and a future generation of Americans will look back 
at the utterances of alleged “saviours” of the country with the 
same amused and contemptuous incredulity as ours when we read 
of those other “statesmen” of the time of Grant who said that the 
Red Cross was surely contrary to the Monroe Doctrine. 

The Covenant since it went into force in 1920 has been 
weighed in the balance of the happenings in world >fairs; and it 
has not been found wanting. I doubt if even its authors, if 
they were all here and could turn the clock back, would change 


LOOKING BACKWARD 555 


it much from what was then written. That the Covenant took 
account of the realities and dealt with them as facts to be faced 
and not ignored, is shown by its working through the troublous 
times of the past years; and any one who has read what I have 
written will know that this quality of the document was in large 
part due to the sagacity of Viscount Cecil. 

No one could suggest, and certainly I would be the last to do 
so, that the Covenant is even approximately a finality. On the 
contrary, I would say that one of the chief merits of the Covenant 
is that it does not attempt finality. ‘Written for the world that 
_ is, and not seeking eternal wisdom, it has in its words and in its 
spirit the promise of betterment hereafter. These years 
have brought attempts to carry further its international system, 
and those very attempts, notably the Treaty of Mutual Assistance 
and the Geneva Protocol, have shown that this Covenant still fits 
the world of today and that the scroll must still unroll before the 
future changes come. The system of law must develop along with 
the belief in the system; it is the logic of experience rather than 
the logic of argument that will lead the nations further along the 
road of arbitration, security and disarmament. 

So far as I know it, I have told the story of the language 
of the League of Nations idea from the time that it was written 
in the Phillimore Plan until it became the Covenant. The story 
is only worth the telling because the idea did become the Cove- 
nant, a Treaty in force among five Great Powers and fifty 
_ others. 

The history of the evolution of a document is of necessity 
a very weary tale. I well appreciate that far more important than 
the origin of phrases and the changes of verbiage is what has 
happened under the document as finally written, how the world 
has lived with the Covenant and how intetnational relations 
are actually conducted; but these have been no part of my 
task; my contribution has touched only that minor and less im- 
portant phase of the beginnings; but if the League of Nations 
shall, as I think, in even nobler form and being, endure through- 
out that future which I may look but never see, then this story will 
remain as a part of the record of that institution, the foundations 
of which were laid by Woodrow Wilson. 


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